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Why Do Attorneys Ask Expert Witnesses for an Opinion “to a Reasonable Degree of Certainty”?

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written by NITA guest bloggers Iva Čechráková and Michael J. Dale

“Expert, do you have an opinion that you can state with a reasonable degree of certainty?” These are most often the exact words attorneys employ when examining expert witnesses. This also is the form of question the majority of trial advocacy text authors recommend as the appropriate or traditional question when examining an expert witness, but not all of them provide a reason why. Oddly, most authors do not explain why.

The complexity of modern society and the resulting expansion in scientific and other sources of technical knowledge increase the likelihood that expert witnesses will testify when disputes are litigated. When an issue is beyond the knowledge of a lay witness, an expert must be called to testify. The expert’s area of knowledge, governed by the Federal Rules of Evidence, may be based upon education, specialized training, and/or experience[1]. Thus, given this background, the expert can help the trier of fact understand the evidence and determine a fact in issue. Under Federal Rule of Evidence 702, when a qualified expert testifies, the testimony may be in the form of opinion or otherwise if the testimony will be helpful.

Expert witnesses occupy a special place at trial and, thus, advocates must bring all of their skills to the task of properly questioning them. Simply asking the expert whether she has an opinion might arguably be weak advocacy and less persuasive than the traditional method. Many people have opinions. But, many of their opinions may not carry much weight. One author states that “expert opinions are the primary―perhaps the only―reason for calling the expert to testify [. . .] and, thus, their disclosure should be the most dramatic and most heightened portion of the direct[2].” Therefore, the advocate should attract the attention of the jury and “choose words that will unequivocally signal that an important answer is forthcoming[3].”

Therefore, the attorney might use stronger, more compelling phrases to persuade jurors and the judge whenever possible. The commonly used language “to a reasonable degree of scientific certainty” most likely represents such language based on the frequency of its use. What is unclear about this phrase is its meaning and the real legal or evidentiary reason why the advocates phrase the question in this specific way. This article attempts to answer this question.

Some authors describe it as a traditional formula[4]. But what is the source of the current formulation? The early common law required that the expert could provide her opinion only if she was able to say the magical words of the traditional formula[5]. Only such an opinion was admissible. The Federal Rules of Evidence do not adopt that view, and many jurisdictions no longer require it. Many jurisdictions now permit experts to testify to possibilities[6]. However, one might conclude that the traditional formula represents the desired stronger and more persuasive statement because the only requirement once relevance is established is that the expert, like other witnesses, may not speculate or guess[7].

Other authors conclude that this phrase adds nothing of legal significance and is not required by the rules of evidence or case law[8]. Thus, unless the judge requires the traditional formula, some suggest that it is best to avoid it[9]. However, these conclusions do not answer the question of whether there is a jurisprudential and evidentiary reason for its use.

The phrase originated in Chicago prior to 1930 as a unique local usage, but the precise origin cannot be determined[10]. It appears that the phrase was created by the efforts of Illinois attorneys to accommodate two inconsistent rules of evidence that were adopted almost at the same time by the Illinois Supreme Court: the Reasonable Certainty Rule and the Ultimate Issue Rule[11]. The Reasonable Certainty Rule prohibited experts from expressing speculative opinions about damages, and it first acted as a rule of substantive proof to establish future damages. Also, it was interpreted to apply to the admissibility of expert medical opinion when testifying about future illnesses or conditions[12]. On the other hand, the Ultimate Issue Rule prohibited experts from usurping the province of the jury by expressing definitive opinions on the ultimate fact[13]. For these reasons, experts were required to express an opinion with a “reasonable certainty,” but were prohibited from expressing an opinion with a degree of certainty that exceeded the hypothetical[14]. The analysis of Illinois cases is consistent with the hypothesis that the phrase originated through the efforts of attorneys to offset the speculative quality of opinions[15]. The attorneys in Chicago began using the phrase frequently, and Irving Goldstein incorporated it in his 1935 manual, Trial Technique[16]. The phrase quickly found its way into nearly every American jurisdiction without regard to its peculiar local origin[17].

Some jurisdictions incorporated the phrase into legal doctrine and attributed legal significance to the phrase, viewing it as required for purposes of admissibility or as a standard of proof[18]. It “resulted from the judiciary’s uncritical acceptance of attorney’s usage without conscious consideration of its meaning[19].”

Even though this phrase has achieved a certain status, it appears that the phrase lacks a definite and ascertainable meaning. The phrase apparently has different meanings in different jurisdictions and in different contexts, generating substantial confusion among experts, legal professionals, and courts. Some experts suggest that the phrase is a legal term of art meaning “more probable than not”—or a 51 percent probability[20]. Others assume that it means something more than a probability—almost a near absolute certainty[21]. Legal professionals use this phrase, but they have not achieved any consensus as to the meaning of the phrase. Some courts interpret it as a “substantive comment about the likelihood that a proposition is true[22].” A majority of courts equate it with a preponderance of the evidence standard[23]. Courts in some jurisdictions interpret it as more demanding, perhaps even approaching the beyond a reasonable doubt standard[24]. One hint of a solution to the evidentiary standard inconsistency could be the recent decision in United States v. Snider[25], where a federal district court in Oregon noted that the court did not ask the experts whether they could express their opinions to a “reasonable degree of medical certainty,” as the question is usually posed in civil cases as a reference to the preponderance standard because in criminal cases this requirement can create confusion about the burden of proof[26].

This confusion results from the incoherence of the phrase itself. The noun “certainty” implies it is the absolute, while the adjective “reasonable” essentially negates the absolute implication of “certainty[27].” While texts on trial advocacy technique reflect the extensive use of the phrase, neither the texts nor the early reported decisions suggest that the phrase has any legal significance. In none of the opinions did the court indicate that this particular phrase was essential or even helpful[28].

In the 1969 case of Boose v. Digate, an Illinois court declared that an expression of reasonable degree of certainty does not relate to substantive certainty about the likelihood of the future condition, but rather to “the general consensus of recognized medical thought and opinion concerning the probabilities” The phrase simply represented an appropriate locution for introducing substantial evidence. The only reasonable explanation for the spread of this phrase are trial advocacy texts and, most specifically, the Goldstein text, Trial Technique[31]. Prior to its publication, the phrase did not appear in a single opinion outside of Illinois[32]. However, the author did not explain that this phrase represented local usage in Illinois courts. Thus, it is understandable that attorneys throughout the United States, without knowledge of this local custom, would assume that the phrase was essential and required.

Interestingly, based on the National Commission on Forensic Science’s recommendations regarding the Testimony Using the Term “Reasonable Scientific Certainty,” it is certain that the phrase was not initiated by physicians[33]. In its recommendations, the Commission stated that “medical professionals and other scientists do not routinely express opinions or conclusions ‘to a reasonable scientific certainty’ outside of the courts[34].” “Such terms have no scientific meaning and may mislead factfinders when deciding whether guilt has been proved beyond a reasonable doubt[35].” Significantly, the Commission commented that there is no common definition as to what threshold establishes certainty[36].

While use of the phrase has become custom and practice, the modern view recognizes that the term is not required. In People v. Ramirez[37], the Colorado Supreme Court found the phrase outdated and inappropriate for determining the admissibility of expert testimony under the current standard codified in Colorado Rules of Evidence[38]. Thus, the court overruled the cases to the extent they approved this standard[39]. A recent decision in West Virginia, Edwards v. McElliotts Trucking, LLC[40], clarifies that the use of the phrase “by experts in court contributes to false sense of confidence in expert opinion and sows confusion about the ‘objectivity’ of the expert’s process[41].” The court also held that “because the phrase has no relation to scientific inquiry and no stable meaning in the law, resort to it only serves to obscure the reliability of the expert’s opinion[42].” Furthermore, the United States Department of Justice has recommended that its attorneys refrain from its use in court[43].

Nevertheless, courts continue to require some level of certitude by experts. Thus, experts can express opinions that a fact was “more likely than not” or “probably” true, but they cannot base their opinions on a mere “possibility” or “speculation” that a fact “might” or “could” be true[44]. Still, courts in several jurisdictions refer to “reasonable medical certainty or probability” without clarifying whether the terms were meant to be synonymous or to represent distinct alternative criteria[45]. On the other hand, courts in most recent cases have held that the experts are not required to phrase their opinion by using the traditional formula and may convey their testimony in a language, which sufficiently shows and persuades the judge that she reached her own best judgment to a reasonable certainty even if not using these exact words[46].

In conclusion, there is not a consistent definition of what these words mean, and, thus, it does not follow that experts should be required to recognize and express their opinions in that way. There is no clear answer provided by case law or secondary sources that demonstrate whether this phrase equates to “more probable than not standard” or “beyond a reasonable doubt standard.” In addition, the United States District Court for the Southern District of West Virginia stated in the footnote to Edwards v. McElliotts Trucking LLC[47] that “the origin story of the phrase reveals its arbitrary birth, unthinking adoption, and most importantly, its vacuity of meaning. Accordingly, it has no place in the admissibility analysis[48].”

Therefore, if lawyers are to consider continuing to use the phrase “to a reasonable degree of certainty,” they should use it because it is more persuasive, the judge expects it, or it is local practice, but not because there is some jurisprudential basis for its use.

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


[1] Fed. R. Evid. 702.
[2] L. TIMOTHY PERRIN, H. MITCHELL CALDWELL & CAROL A. CHASE, THE ART & SCIENCE OF TRIAL ADVOCACY 396 (2003).
[3] Id.
[4] RONALD L. CARLSON & EDWARD J. IMWINKELRIED, DYNAMICS OF TRIAL PRACTICE: PROBLEMS AND MATERIALS 342 (4th ed. 2010); see also DAVID D. MALONE & PAUL J. ZWIER, EFFECTIVE EXPERT TESTIMONY 91 (3rd ed. 2014) (the authors indicate that the counsel should make the presentation of the expert’s opinion dramatic, ask in formal language to call the juror’s attention to it and to assure the judge that the counsel followed the legal formalities because the formal language gives it weight and the terminology “reasonable degree of certainty” is required in almost identical language in many jurisdictions). [Note: However, the authors do not mention any specific rule, case law or the reason for this use.]
[5] CARLSON & IMWINKELRIED, supra note 4, at 342; see also State v. Holt, 246 N.E.2d 365 (Ohio 1969) (holding that “. . . where in answer to question whether, as result of the analysis, he had an opinion ‘based on reasonable scientific certainty as to the’ [. . .], his response was that ‘the samples are similar and are likely to be from the same source,’ such response fell short of the legal requirement of ‘reasonable certainty’ or ‘probability’, so that admission in evidence of such answer over objection constituted prejudicial error.”) [Note: State v. Holt was later negatively impacted by State v. Brenner, 533 N.E.2d 701 (Ohio 1988).]
[6] Dupree v. County of Cook, 677 N.E.2d 1303 (1997); United States v. Davis, 44 M.J. 13, 16 (C.A.A.F. 1996). However, the opinion can be vulnerable to effective cross-examination because the advocate can compel the expert to admit that the opinion is a mere possibility, not a probability or a certainty and may convince the trier of the fact that it is a speculative opinion and the other party does not met its burden of proof.
[7] CARLSON & IMWINKELRIED, supra note 4, at 342.
[8] THOMAS A. MAUET, TRIAL, STRATEGY, SKILLS, AND THE NEW POWER OF PERSUASION 410 (2nd ed. 2009); see also STEVEN LUBET & J.C. LORE, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 236-37 (5th ed. 2015) (the authors are not expressly saying that the traditional formula is a proper way to ask an expert about her opinion but call for testimony in straightforward, unequivocal terms that emphasizes accuracy and certainty in order to prevent miscommunication and loss of expert’s credibility); see also STEVEN LUBET, EXPERT TESTIMONY: A GUIDE FOR EXPERT WITNESSES AND THE LAWYERS WHO EXAMINE THEM 8 (1998) (the author in the earlier edition of the text emphasizes that in most jurisdictions an expert’s opinion must be stated to a “reasonable degree of certainty” even though he admits that the term is difficult to define may be ambiguous or an oxymoron, and thus, he asks a variety of questions such as, “What is a reasonable degree of certainty?” or “How do you know when you have it?” and answers that most likely the best approach is self-referential; however, he also warns that “reasonable certainty” is merely the minimum level of confidence required for the expression of an opinion in court).
[9] MAUET, supra note 8, at 410.
[10] Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 MD. L. REV. 380, 381 (1998).
[11] Id. at 406–30.
[12] Id.
[13] Id.
[14] Id. at 410–14.
[15] Philadelphia & Reading Coal & Iron Co. v. Industrial Comm’n, 165 N.E. 161, 162 (Ill. 1929); Armour Grain Co. v. Industrial Comm’n, 153 N.E. 699, 701 (Ill. 1926); Benton Coal Mining Co. v. Industrial Comm’n, 151 N.E. 520, 525 (Ill. 1926) (these three cases represent worker’s compensation cases); Herbst v. Levy, 279 Ill. App. 353, 358 (App. Ct. 1935) (this case evidences that this phrase was used not only in worker’s compensation claims but also in different practices―in this case, the expert witness was asked “whether he could determine with reasonable scientific certainty the cause of the capsizing of the boat”).
[16] Lewin, supra note 10, at 425–54, 456–57.
[17] In Ohio, New York, Arizona, Delaware, Florida, Michigan, Hawaii, California, and Montana, the phrase entered the vocabulary of attorneys with only mild endorsement from the courts. On the other hand, in Washington, Minnesota, Missouri, Wisconsin, Pennsylvania, New Mexico, Tennessee, Oregon, Colorado, and South Carolina, the phrase received a strong endorsement from the courts.
[18] Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1203 (8th Cir. 1969) (holding that if the witness possesses extraordinary training to aid laypersons in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary); Penteluk v. Stark, 244 Minn. 337, 340 (Minn. 1955) (the court incorporated the phrase in its description of the standard of proof of permanent injuries, stating that “the rule is that for a person to recover for permanent injuries it must appear to a reasonable medical certainty that there will be permanent injury”). Later Minnesota courts held that it would be also satisfied by testimony expressed in terms of probability.
[19] Lewin, supra note 10, at 396.
[20] Id. at 402; see also Douglas Danner & Elliot L. Sagall, Medicolegal Causation: A Source of Professional Misunderstanding, 3 AM. J.L. & MED. 303, 305 (1977).
[21] State v. Austin, 368 N.E.2d 59, 61, 66–67 (Ohio Ct. App. 1976).
[22] Lewin, supra note 10, at 403–04.
[23] Dallas v. Burlington N., Inc., 689 P.2d 273, 277 (Mont. 1984); Wheeler v. Central Vt. Med. Ctr., Inc., 582 A.2d 165, 170 (Vt. 1990).
[24] Cf. Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158, 165–67 (Wyo. 1989).
[25] 180 F. Supp. 3d 780, 795, 798 (D. Or. 2016), appeal dismissed (Sept. 7, 2016).
[26] Id.
[27]Edwards v. McElliotts Trucking, LLC, 2017 WL 3611848, at *3, 5 (S.D.W. Va. Aug. 22, 2017) (reference to footnote 2); see also Lewin, supra note 10, at 400–01.
[28] Not until 1937 decision in Shell Petroleum Corp. v. Industrial Commission, 10 N.E.2d 352 (Ill. 1937), where the court attached significance to the failure of a witness to state his opinion with reasonable medical certainty. However, the Court did not provide any reason why it was so crucial to express the opinion in this way or explain the meaning of the phrase.
[29] 246 N.E.2d 50, 53 (Ill. App. Ct. 1969).
[30] Id.
[31] IRVING GOLDSTEIN, TRIAL TECHNIQUE (1935).
[32] Lewin, supra note 10, at 453.
[33] NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, TESTIMONY USING THE TERM “REASONABLE SCIENTIFIC CERTAINTY”, available at https://www.justice.gov/archives/ncfs/page/file/641276/download.
[34] Id.; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590 (1993) (stating that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science”); see also Danner & Sagall, supra note 20, at 308.
[35] NAT’L COMM’N ON FORENSIC SCI., supra note 33.
[36] Id.
[37] 155 P.3d 371, 375–76 (Col. 2007).
[38] Id.
[39] Id.
[40] 2017 WL 3611848, at *3 (S.D.W. Va. Aug. 22, 2017).
[41] Id.; see also NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, RECOMMENDATIONS TO THE ATTORNEY GENERAL REGARDING USE OF THE TERM “REASONABLE SCIENTIFIC CERTAINTY” (Mar. 3, 2016).
[42] Edwards, 2017 WL 3611848, at *4.
[43] Id. at *3; see also Seth Augenstein, DOJ’s Code of Conduct: No More ‘Reasonable Scientific Certainty’ (Sept. 2016) available at https://www.forensicmag.com/article/2016/09/dojs-code-conduct-no-more-reasonable-scientific-certainty.
[44] Lewin, supra note 10, at 462–63.
[45] Holecek v. Janke, 171 N.W.2d 94, 101 (N.D. 1969); State v. Holt, 246 N.E.2d 365 (Ohio 1969); Lane v. State Farm Mut. Auto. Ins. Co., 308 N.W.2d 503, 512–13 (Neb. 1981).
[46] Marpaka v. Patel, 2017 WL 84655, at *2 (N.J. Super. Ct. App. Div. 2017); Aspiazu v. Orgera, 535 A.2d 338, 342 (Conn. 1987); State v. Jarrell, 608 P.2d 218, 230–31 (Utah 1980).
[47] 2017 WL 3611848, at *4, 5 (S.D.W. Va. Aug. 22, 2017).
[48] Id. (reference to footnote 2).

The Legal Significance of Including the Words “If Anything” in a Question at Trial

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written by NITA guest bloggers Marina Kunina and Michael J. Dale

Walk into any courtroom in the United States during a trial and one will hear lawyers ask questions like, “What, if anything, happened next?” or “What, if anything, did you do after that?” This article seeks to understand the background, purpose, and place in a modern legal practice of the use of the phrase “if anything” in questioning a witness. It raises the question as to whether the phrase actually has any legal significance.

The historical background for the use of the phrase is not particularly helpful. One of the earliest case in the United States dealing with the effect of the “if anything” phrase is Albatross v. Wayne, 1847 WL 71 (Ohio Dec. 1847) In that case, the Supreme Court of Ohio was asked to determine whether the question “‘What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats, different from the usages of other ports on the Mississippi River?’” was “unfair, leading, argumentative, and faulty in effect, if not in form.” The court, affirming the lower court’s overruling of the objection, held that the question was not “fairly liable to any such objection.” Explaining that the question was not susceptible to objection, the Ohio Supreme Court stated that “the witness, if ignorant of the customs of all the places on the river, would have answered negatively, and so the plaintiff would have gained proof from the mere ignorance of the witness against the existence of the special custom sought to be established as a valid custom at the port of Memphis.” The court further held that the question containing the “if anything” phrase “was as far from being leading as anything could be; nor was there anything unfair in it.”

In 1899, the Court of Criminal Appeals of Texas held that a prosecutor was permitted to ask, “If there was any inducement or consideration for the first act of intercourse[,] state what it was.” The Court explained that this type of question, which approximates the “what, if anything” approach, was not erroneous, as “leading or suggestive of the answer.” Harvey v. State, 53 S.W. 102 (Tex. Crim. App. 1899).

In 1855, the Supreme Court of Judicature of New Hampshire was asked to determine whether the plaintiff could introduce his own statement by asking the witness what the plaintiff said to him. The court held that the plaintiff could not introduce the statement at issue in his own way. The court said, however, that a party might ask his witness what, if anything, was said by him that induced him to take notice of what occurred. Wiggin v. Plumer, 31 N.H. 251, 271 (1855). Here, the court seemed to explain how particular wording can avoid a question to be susceptible to a hearsay objection.

In Prickett v. Sulzberger & Sons Co., 57 Okla. 567, 157 P. 356 (1916), the Supreme Court of Oklahoma, dealing with the issue of whether the administrator could introduce the deceased’s statement made to the eyewitness of the fatal incident, found prejudicial error in not allowing the question “‘[W]hat, if anything, did [the deceased] say about the elevator just before he stepped? What, if anything, was said by you and by him in reference to the elevator just as he was stepping off the bridge?’” as calling for a hearsay. Thus, the “what, if anything” phrase did not cure the hearsay.

In Nickell v. State, 205 Wis. 514, 238 N.W. 508 (1931), the Supreme Court of Wisconsin held that the question “[w]hat, if anything, did the defendant . . . say about treating or healing headaches?” was not objectionable as leading. Therefore, older case law, while recognizing the use of the phrase, does not offer much guidance about the justification for its use. Contemporary jurisprudence still uses the “if anything” phrase as, for want of a better term, a trick to rebut a leading objection. Although introductory “if anything” may sometimes correct the leading question, in the present case the question can still remain “leading and may objectionable if it improperly suggests ‘treating’ or ‘healing’ or even ‘headaches,’ or if it is disputed that the defendant said anything on those subjects.” § 27:7, Leading questions, 23 MINN. PRAC., TRIAL HANDBOOK FOR MINN. LAWYERS § 27:7 (2017–2018 ed.).

Morphologically, or form-wise, “if anything” can be regarded as a connective incorporated into the question “to prompt and guide the witness in telling his story.” In a practical sense, “if anything” phrases are utilized as the witness’s “go ahead” signal. When the witness stops testifying because of uncertainty of the appropriateness of proceeding with his answer, “if anything” “[c]onnectives help to lead the witness over such troublesome situations without being subject to [leading] objection.” § 11:37, Connectives, 2 LANE GOLDSTEIN TRIAL TECHNIQUE § 11:37 (3d ed.).

Similarly, when the question “When did you stop beating your wife?” assumes that the witness did, in fact, beat his wife and is not permissible, the question “What did the defendant do to you, if anything?” according to one writer, would be proper as not assuming anything and not being leading. Michael Catalano, 6 AM. JUR. TRIALS 605 (originally published in 1967). The authors suggest that the practical application of the “if anything” phrase may also be an effort to avoid the assuming facts not in evidence objection.

Despite the fact that historically some courts have approved “if anything” questions as not being leading, it certainly can be argued use of the phrase does not solve the problem. It has been argued that such questions tend to suggest to the witness that a positive response should be given. For instance, the question “What did you say to him, if anything?” suggests that the witness, in fact, said something to the person. Stephen E. Arthur, Leading questions; hostile witnesses, 22A IND. PRAC., CIVIL TRIAL PRACTICE § 30.20 (2d ed.).

The extreme directedness of a question can be minimalized by using “a less leading way of getting the same information available.” A leading National Institute for Trial Advocacy instructor has argued that the desired answer to an “if anything” question is not regarded as leading and, hence, would not be objectionable while producing almost the same effect as an aggressive suggestive question. Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 BAYLOR L. REV. 701, 744 (1991).

It is also suggested that including the “if anything” phrase in a question may help to avoid the prejudicial effect of the testimony and even prevent some constitutional violations. For example, in State v. Underwood, 281 N.W.2d 337, 338 (Minn. 1979), the Minnesota Supreme Court found the responses by a prosecution witness to a question “Did you talk to him [defendant] any after you got back to Owatonna?” constituted comments on the defendant’s constitutional right to remain silent and, hence, were prejudicial even though elicited by defendant’s counsel on cross-examination. In absence of the appropriate defense attorney’s objection, the prejudicial effect of the testimony could have been reduced by asking, “What, if anything, did the defendant say?” § 5042 Insulating The Jury From Inadmissible Evidence, 21 FED. PRAC. & PROC. EVID. § 5042 (2d ed.).

“If anything” also is thought to be a useful tool for a redirect examination. As the scope of redirect examination is strictly limited to the scope of cross-examination, it is usually hard for the examiner to effectively develop the testimony on redirect examination, because leading questions are not generally permitted. To reduce the objectionable effect of a leading question to get at the desirable information, the “if anything” technique is widely utilized, especially where a leading question seeks to incorporate particular factual matters by refutation in the form of a denial or affirmation. § 611:12 Redirect and recross examination, WINNING EVIDENCE ARGUMENTS § 611:12.

It is obvious that hearsay objections cannot easily be eliminated by use of “if anything” in a question. For example, the question “What, if anything, did you see the officer do next?” itself may not be objectionable due to the wording used. However, the examiner cannot fully control the witness’s response, and the answer “The officer came into my store and said . . .” will still be impermissible hearsay and the objection made must be sustained. § 13:50, Hearsay, 3 LANE GOLDSTEIN TRIAL TECHNIQUE § 13:50 (3d ed.).

And finally, the “If anything” phrase is also not helpful to rebut the hearsay objection against so-called “implied hearsay,” when, although visibly not calling for a hearsay and not being leading, the “if anything” question calls for an answer that does not have any relevance except as to show what one witness said to another witness. David F. Binder, HEARSAY IN A NUTSHELL, VERDICTS, SETTLEMENTS AND TACTICS 360, 362 (1989). See Com. v. Farris, 251 Pa. Super. 277, 280, 380 A.2d 486 (1977).

In conclusion, research suggests that the phrase “if anything” is used to avoid leading questions and assuming facts not in evidence, to guide the witness, and improbably to avoid hearsay. Oddly, there are few reported opinions on the subject, and the commentary in practitioner guides seems conclusory. If the phrase “if anything” is necessary to avoid a leading objection, does that mean that multiple, otherwise open-ended questions will require use of the phrase or something like it? For example, lawyers will have to ask “What, if anything, happened next?” or “Where did you go, if anywhere, after that?” The question then to ask is whether the questions are really leading without use of the phrase. The question can also be asked in the context of the objection assuming facts not in evidence. Does the “if anything” phrase cure the facts coming first from the mouth of the attorney? The authors suggest that the phrase should be abandoned because it does not solve any of the problems it seeks to address, except perhaps to help the witness understand the question. The phrase just seems to be a traditional question filler.

Marina Kunina is a Russian attorney and May 2018 graduate of Nova Southeastern University Shepard Broad College of Law, Fort Lauderdale, Florida. She was a research assistant to Professor Michael J. Dale.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.

Service of Process Outside the United States Updated: Water Splash and its Progeny

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written by NITA guest blogger Tereza Horáková

On May 22, 2017, one year after publication of our blog post[1] on how to serve process outside the United States, the United States Supreme Court resolved a conflict among the lower courts concerning an important practical service question: Does the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter the Hague Convention) prohibit service by mail under Article 10(a)? In Water Splash, Inc. v. Menon, the Supreme Court held that the Hague Convention indeed does not prohibit service by postal channels[2]. This note provides a brief analysis of the Supreme Court decision and an overview of the case law that followed.

Water Splash, Inc. sued its former employee, Tara Menon, in a state court in Texas, alleging that Ms. Menon had begun working for a competitor while still employed with Water Splash, Inc. Ms. Menon resided in Canada at the time, and Water Splash, Inc. effectuated service by mail after obtaining permission to do so from the trial court. Eventually, the trial court entered a default judgment for Water Splash, Inc. due to Ms. Menon’s refusal to answer or otherwise enter an appearance. Ms. Menon moved to set aside the default judgment, arguing that she had not been properly served. The trial court denied Ms. Menon’s motion, only to be overturned on appeal. After the Texas Supreme Court denied discretionary review, the United States Supreme Court granted certiorari to resolve a broader conflict among lower courts turning on the interpretation of the Hague Convention.

The Supreme Court first analyzed the key language of Article 10(a) of the Hague Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Ms. Menon argued that because subsection (a) uses the word “send” as opposed to expressly referring to service as in subsections (b) and (c) of Article 10, this textual difference implies that sending documents through postal channels does not equal service. The Supreme Court rejected this argument as having no foundation in the text of the treaty or anywhere else.

First, the Supreme Court noted that the scope of the Hague Convention is limited to service of documents and Ms. Menon’s interpretation would render Article 10(a) meaningless, which goes against fundamental principles of contract interpretation. Second, treaty interpretation must consider the context in which a particular treaty provision is used. The structural placement of Article 10(a) strongly suggests that it pertains to service of process, considering that the immediately following subsections (b) and (c) expressly refer to “service of judicial documents.” Last, the Supreme Court considered extratextual sources shedding light on the meaning of Article 10(a). The Hague Convention’s drafting history, the views of the Executive, and the views of many other signatory countries such as Canada, Italy, and United Kingdom all concluded that the Hague Convention allows service via postal channels.

However, the Supreme Court’s unanimous decision authored by Justice Alito also cautioned that neither does the Hague Convention affirmatively authorize it[3]. In fact, the Hague Convention permits service by mail only if two conditions are met: 1) the receiving state has not objected to service by mail, and 2) service by mail is authorized under otherwise-applicable law[4]. For affirmative authorization of service by mail and any requirements as to how that service is to be accomplished, one must look to the law of the forum in which the suit is filed[5].

Several courts have already cited Water Splash and utilized its holding. For example, the technical differentiation between permission and affirmative authorization under the Hague Convention proved fatal to the plaintiff in Fed. Ins. Co. v. Cessna Aircraft Co[6]. In that case, the plaintiff argued that it properly served the defendant by international mail pursuant to Fed.R.Civ.P. 4(f)(1) and (2). Rule 4(f)(1) provides for service by an internationally agreed means of service, “such as those authorized by the Hague Convention” (emphasis added). However, Water Splash held that the Hague Convention does not affirmatively authorize service by postal channels, but merely permits it only if the otherwise-applicable law authorizes it. Accordingly, the district court held that plaintiff had not effectuated service under Rule 4(f)(1), because the plaintiff served the defendant by means not authorized by the Hague Convention, but merely permitted by it[7]. The district court then analyzed whether the plaintiff served the defendant under Rule 4(f)(2), which applies there is no internationally agreed means, or an international agreement allows but does not specify other means (as here under the Hague Convention); however, the plaintiff failed to comply with the requirements of Rule 4(f)(2) as well.

In Moore v. Toyota Motor Corp[8]., the defendant was not properly served because the plaintiff did not comply with the second prong of the test for service by mail under the Hague Convention—i.e., that service by mail is authorized by otherwise-applicable law. Specifically, the plaintiff attempted to serve the defendant in Japan by regular international mail via United States Postal Service without a proof of delivery on the recipient. However, no provision of the Federal Rules of Civil Procedure affirmatively authorizes service in a foreign country by regular mail without a proof of delivery. Therefore, the district court found that the plaintiff failed to properly serve the defendant.

In a similar case, In Re LLS Am., LLC[9], the plaintiff served the defendant via the clerk of court, who certified “that a copy of the Summons and Complaint was mailed by international registered mail with Returned Receipt for International Mail” to both defendants. This method of service is affirmatively authorized under Fed.R.Civ.P. 4(f)(2)(C)(ii) and, therefore, the district court found that the plaintiff properly served the defendant via postal channels under the Hague Convention.

In conclusion, the Supreme Court has made clear that the Hague Convention does not prohibit service of process by mail. However, as the progeny of Water Splash has shown, one must be cautious to comply with the two-prong test for service of process under the Hague Convention as set out in Water Splash.

Tereza Horáková is an attorney in Miami, where she practices commercial litigation, probate administration and litigation, and estate planning. Ms. Horáková graduated from Nova Southeastern University, College of Law, and Charles University Faculty of Law in Prague, Czech Republic. While at Nova, Ms. Horáková was a research assistant to Professor Michael J. Dale, whom she thanks for his review of this article. She can be reached at tereza@hotmail.cz.


[1] “Service of Process Outside the United States: A Basic Overview,” by Tereza Horáková and Michael J. Dale, posted on March 23, 2016. Available at http://blog.nita.org/2016/03/service-process-outside-united-states-basic-overview/.
[2] While the Hague Convention does not define the term postal channels, the case law generally construes the term to mean postal mail, such as the United States Postal Service. However, the Hague Convention does not define what type of mail qualifies as use of postal channels. A Special Commission of the Convention stated in 2003 that service through private courier is the equivalent of service through postal channels (see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at ¶ 56 (Oct. 28–Nov. 4, 2003)).
[3] Justice Gorsuch took no part in the consideration or decision of the case.
[4] The countries that have objected to the service of process via postal channels include, among others, the Czech Republic, Germany, and Argentina.
[5] Brockmeyer v. May, 383 F.3d 798, 803–04 (9th Cir. 2004) (“Article 10(a) does not itself affirmatively authorize international mail service. It merely provides that the Hague Convention “shall not interfere with” the “freedom” to use postal channels if the “State of destination” does not object to their use. As the Rapporteur for the Convention wrote in explaining Article 10(a), “It should be stressed that in permitting the utilization of postal channels, . . . the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilized, it is necessary that it be authorized by the law of the forum state.”)). The Supreme Court cited Brockmeyer in Water Splash, 137 S. Ct. at 1513 (2017).
[6] Fed. Ins. Co. v. Cessna Aircraft Co., 2017 WL 2905576 (D. Kan. July 7, 2017).
[7] The United States District Court for the District of New Jersey has reached the same conclusion in an unpublished opinion in Trzaska v. L’Oreal USA, Inc., 2017 WL 6337185 (D.N.J. Dec. 12, 2017), where the plaintiff unsuccessfully attempted to effectuate service under Rule 4(f)(1) by mailing a copy of the summons and complaint by way of the United States Postal Service’s “Priority Mail Express International.”
[8] Moore v. Toyota Motor Corp., 2017 WL 5257050 (E.D. La. Nov. 13, 2017).
[9] In Re LLS Am., LLC, 2017 WL 3013260 (E.D. Wash. July 14, 2017).

Domestication and Enforcement of American Judgments in the European Union Member States

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written by NITA guest bloggers Massimo Reboa and Michael J. Dale

Introduction
In international commercial disputes, a major concern American lawyers can have is the collection of contractual debts. To avoid this problem, companies often use what is known as a bank demand guarantee, where a bank in the role of guarantor will pay the beneficiary a fixed amount of money upon the request for payment from the beneficiary. This system is used to ensure that the debts are paid without going through the unfamiliar judicial system of another country. A second solution is to insert an arbitration clause in the contract. An arbitration clause appoints a private court to hear the case when a dispute over the contract arises.

However, both approaches have shortcomings. Bank demand guarantees are expensive, while the validity and the enforceability of arbitration clauses are often contested. A third collection option for collection of a commercial debt in third countries is to reduce it to a court judgment and then have cross-jurisdictional enforcement.

An example may be helpful to understand the process. Suppose one’s client, Company P, has sued Company D in a United States court for breach of contract. Company P had a good claim and obtained a judgment, but Company D does not own significant assets in the United States and further thinks it can avoid or delay paying the judgment in the United States. However the client, Company P, has knowledge that Company D has substantial assets in a European Union state and has asked counsel to enforce its American judgment there.

This article examines the obstacles to and the limitations in domesticating and enforcing an American judgment in civil matters in European Union states, as each of them has different rules of domestication and enforcement. The following section will focus on the domestication in Italy, Spain, and the Czech Republic as representative of the approach. The same section will then consider the effects of domestication of an American judgment under the “Brussels Regime” in the European Union system. The next section will propose as an alternative approach initially filing the case directly in a court of one of the European Union states, rather than commencing the case in an American court, obtaining the judgment, and then enforcing the judgment in the European Union system. Finally, the conclusion will analyze the advantages and the disadvantages of the two approaches.

Domestication and enforcing American judgments in European Union countries
To domesticate any foreign judgment in the European Union countries, one should first consider bilateral and multilateral treaties. For example, France and Uruguay have established paths to the judicial systems of each other under a treaty they signed in 1991. Articles 18 to 22 of that treaty regulate domestication and enforcement of judicial decisions and arbitral awards[1]. Unfortunately, the United States signed neither bilateral nor multilateral treaties of this kind with any nation[2]. Therefore, the applicable law for domestication of an American judgment will be the default law of domestication of foreign judgments in each nation of the European Union[3].

A review of each of the 28 European Union states’ domestication procedure is beyond the scope of this article. In addition, some states in the European Union are federally structured themselves, and their federated entities govern the domesticating procedure. Therefore, the number of domestication procedures is even higher than the number of the European Union states.

For the purpose of this article, three European Union states—Italy, Spain, and Czech Republic—have been selected to provide insight into the requirements to enforce an American judgment in the European Union. This section will also consider whether domestication in one European Union state facilitates further domestication in other European Union states.

Domestication in Italy
Italy has a very liberal system of domestication[4]. Law 218/1995[5] reformed Italian international private law and provides for automatic domestication without the need for a domesticating procedure[6]. However law 218/1995 still provides a safeguard of a jurisdictional check when jurisdictional enforcement is necessary or when the validity of the foreign judgment is contested.

When a jurisdictional check is required, venue lies in the Italian Court of Appeal district where the petitioner seeks to enforce the American judgment[7]. The Court of Appeal shall verify that all the formal prerequisites to enforce the foreign judgment have been met, with the exclusion of a review of the case on the merits[8].

The first of these prerequisites is the existence of jurisdiction under Italian law by the court that entered the judgment. Second is the compliance with an Italian version of due process in the form of service of the summons in accordance with the law applicable where the proceeding has taken place (procedural due process) and in the form of an absence of violations of the essential rights of the defendant (substantive due process). Third is the appearance of the parties before the court that entered the judgment according to the law applicable to that proceeding or, as an alternative, the entry of a default judgment under such law. The fourth prerequisite is that the judgment was res judicata under the law of the jurisdiction where it was entered. Under Italian law, a judgment is res judicata when it has the capacity of creating claim preclusion. Fifth is the absence of conflicts between the judgment to be domesticated and other Italian judgments that are res judicata. Sixth is the absence of a proceeding pending before an Italian judge on the same claim and between the same parties (lis alibi pendens) commenced before the proceeding was commenced in the American court. The last prerequisite is the absence of conflicts of the judgment with Italian public policy[9]. This is the case when an American court awards punitive damages, which are not permitted under Italian law[10].

Every party who has an interest in domesticating an American judgment can petition the Court of Appeal to ascertain the existence of these prerequisites. At the end of this proceeding, the opinion of the Court of Appeal grants or denies domestication. If the Court of Appeal confirms, both the foreign judgment and the judgment of the Italian Court of Appeal should be deposited at the enforcement division of the Tribunal where the assets of the debtor are located to commence the enforcement action[11].

Domestication in Spain
The Spanish law 29/2015[12] reformed the Spanish system of international cooperation in civil matters. The most noticeable change has been the abolition of the requirement of reciprocity in enforcing the judgments with the nation where the judgment had been issued[13], also known as comity, which was a fundamental principle under the Spanish Civil Procedure Act of 1881.[14]

Under the new law, domestication is available for final judgments, and a review of the merits of the case is expressly banned[15]. However, certain circumstances impede the Spanish tribunal from domesticating a foreign judgment[16].

The first is the incompatibility of the foreign judgment with Spanish public policy, which corresponds to Spanish constitutional principles, rights, and guarantees[17]. Second is a clear violation of the defendant’s rights. In a case of default judgment, a violation occurs if the defendant did not receive the summons or an equivalent document sufficiently in advance to permit him to defend himself. The third circumstance is the existence of exclusive jurisdiction in Spanish courts or, with reference to other matters wherein Spanish courts do not have exclusive jurisdiction, the absence of a reasonable connection between the case and the state where the judgment was entered to support its jurisdiction. A presumption of existence of a reasonable connection exists if jurisdiction is established by criteria similar to those used to establish Spanish jurisdiction. The goal of the provision is to avoid possible conflicts of judgments. The fourth circumstance is the incompatibility of the foreign judgment with other judgments issued in Spain. Fifth is the incompatibility of the foreign judgment with other previous judgments from other nations that could have been domesticated in Spain or that were actually domesticated. Finally, the tribunal should not domesticate the judgment if there is a proceeding pending on the same claim between the same parties in Spain (lis alibi pendens) that started before the foreign proceeding[18].

Venue is proper in the judicial district of the Tribunal of First Instance (or in the judicial district of the Mercantile Tribunal, if it has jurisdiction) where the debtor or the garnishee is domiciled. In the absence of such a domicile, venue is proper in the judicial district where the judgment should be executed[19]. Every party interested can petition for domestication in the procedure enforcing the judgment or in a separate procedure[20].

To domesticate the judgment, the party seeking enforcement has five years from the day the foreign court has entered its judgment to present it to the court clerk[21], who checks its prima facie formal requirements and serves the debtor or the garnishee. The debtor or the garnishee then has thirty days to oppose domestication. After the term expires or opposition has been presented, the court has ten days to grant or deny a decree of execution[22]. The resisting party can appeal the decree under the ordinary Spanish rules of civil procedure[23].

Domestication in the Czech Republic
Upon petition of any party with a legitimate legal interest in the judgment to be domesticated, Czech courts shall examine it, provided that it is final[24] Czech law defines certain circumstances in which the judgment, although final, cannot be domesticated and, thus, cannot be enforced[25].

The first exception is where Czech courts have exclusive jurisdiction or, if they do not have exclusive jurisdiction, where the foreign court would not have had jurisdiction if the Czech rules of jurisdiction had been applied. Exceptions to this provision exist when the judgment has been issued against a foreign defendant, and the defendant has consented to jurisdiction in the foreign court. The second exception is when a proceeding, which was commenced before the proceeding whose domestication is sought, is pending before a Czech court on the same legal relationship (lis alibi pendens). The third exception is when a Czech court has already entered a final judgment on the same legal relationship or when another judgment on the same legal relationship has been domesticated in the Czech Republic, thus creating claim preclusion (res judicata). Fourth is when the defendant has been prevented from participating to the original proceeding—for example, in a case in which defendant has not been served with the summons to appear or the motion to commence the proceeding. The fifth exception is when the domestication would clearly contravene Czech public policy. Finally, Czech courts shall verify the existence of comity with the foreign state on a case-by-case basis. However, comity[26] is required only if the judgment is to be enforced against a Czech citizen or a Czech legal entity.

The court should consider these circumstances in a different proceeding from the enforcing one, except when the case regulates property matters. In property matters, the Czech authorities take the judgment into account as if it were their own decision and without a domestication proceeding[27].

The effects of domestication by a European Union state court: Owen Bank v. Bracco
Once a judgment is domesticated in a European Union state, the contractual creditor can enforce the American judgment against the contractual debtor in that state. However, it may be the case that the assets of the contractual debtor in the state in which the American judgment is domesticated are not sufficient to satisfy the claim, and there are other assets located in other European Union states. For example, if the assets are personal property, they can easily move across the European continent, as the European Union has created an open border area, known as the Schengen Area, that permits free movement across almost the entire continent[28]. The question thus becomes whether the American judgment, once domesticated in one European Union state, could be enforced in another European Union state.

To address this question, one must consider the Brussels I bis Regulation[29], which governs the Brussels Regime. It is a European version of the Full Faith and Credit Clause of the United States Constitution in matters of civil and commercial judgments. The Regulation permits automatic domestication of a judicial order in civil and commercial matters inside the European Union when a court of one of the European Union states has issued it. In fact, the Regulation has abolished every additional formality for the enforcement of judgments entered in other European Union states, except for a certificate of enforceability from the court that entered the judgment to be enforced[30].

Article 36 of the Brussels I bis Regulation states: “A judgment given in a Member State shall be [domesticated] in the other Member States without any special procedure being required.”[31] Article 39 of the same Regulation uses corresponding words for enforceability: “A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required[32].” The consequence is that the Regulation is applicable even if a judgment is not final.

One would think that the Brussels Regime would be applicable to an American judgment in civil and commercial matters once the American judgment has been domesticated and made enforceable in one of European Union states, as the respective domesticating procedure ends with a local judgment. Unfortunately, the Court of Justice of the European Union[33] has interpreted the Brussels Regime differently. In Owen Bank v. Bracco, decided in 1994, the issue was whether the concept of “civil and commercial matters” governed by the Regulation extends to domesticated judgments. In Owen Bank v. Bracco, the Court reasoned that “[t]he rules of procedure governing the [domestication] and enforcement of judgments given in a non-contracting State differ accordingly to the Contracting State in which [domestication] and enforcement are sought[34].” According to the Court, the fact that each European Union state can establish its own standard for domestication of non-European Union judgments implies that judgments originally entered by a non-European Union state fall outside the definition of “civil and commercial matters,” as evidenced by the absence of a provision to determine venue for judgments previously domesticated in another European Union state[35]. The Court was probably concerned about the possibility that a different decision would have created forum shopping among European Union states for domestication of judgments entered by courts outside the European Union.

Therefore, the Brussels Regime is applicable only to judgments originally issued by a European Union state and not to judgments domesticated in a European Union state. The opinion remains good law, as the European Union legislature has not intervened on the point when it replaced the Brussels Convention[36] with the Brussels I Regulation[37] and then with Brussels I bis Regulation[37].

Therefore, the enforcement of a foreign judgment, including a judgment from the United States, requires a domestication procedure in every European Union state in which the contractual debtor has assets even when the judgment has already been domesticated in another European Union state.

An alternative approach through the Brussels Regime
According to Owen Bank v. Bracco[39], the effects of domestication in one state cannot be extended throughout the European Union. Thus, a contractual creditor would likely look for a more immediate path to collect the money owed by its contractual debtor. To avoid the long and expensive domestication of the American judgment in each of the European Union states where assets of the contractual debtor are located, and in consideration of the ability of the contractual debtor to move assets to another European Union state[40], a contractual creditor should consider other options. In fact, when the dispute is first commenced in a trial court of a European Union state, no domestication procedure is required and the resulting judgment benefits from the Brussels Regime.

Standards under Brussels I bis Regulation
Article 1 § 1 of the Brussels I bis Regulation limits its application of the Brussels Regime to civil and commercial judgments “whatever [is] the nature of the court or tribunal[41].” Provisional or protective measures are expressly considered judgments for the purposes of this Regulation[42]. However, Article 1 § 2 then excludes a number of matters from application of the Regulation. The exclusions include revenue and customs or administrative matters, liability of the State for acts by right of dominion (known as acts of state doctrine in American law); status or legal capacity of natural persons; rights in property arising from a matrimonial or equivalent relationship; and obligations arising from a family relationship, parentage, marriage or affinity[43], wills and succession, bankruptcy and analogous proceedings, social security, and arbitration[44].

Article 4 of the Regulation defines jurisdiction and rules that the domicile of the defendant is sufficient to establish jurisdiction even when the defendant is not a citizen[45]. In a case where the plaintiff sues the defendant in the court of a European Union state where the defendant is not domiciled, Article 7 through Article 26 of the Regulation set forth how to establish jurisdiction. These rules preempt state law[46]. Finally, if the defendant is not domiciled in a European Union state, the law of that state in which the action is commenced determines jurisdiction[47].

The Regulation provides for automatic domestication and enforceability of judgments originally entered by a court of a European Union state. Thus, the party who desire to enforce the judgment need only produce a copy of the judgment, which satisfies the conditions necessary to establish its authenticity, and a certificate of enforceability from the court that originally issued the judgment[48]. The certificate is a form that contains a statement from the court that entered the judgment to be enforced. In this certificate, the court declares that the judgment is enforceable, provides relevant information on recoverable costs and interest, and reproduces an extract of the judgment[49]. The certificate should “be served on the person against whom the enforcement is sought prior to the first enforcement measure,” together with the judgment itself, if it was not already served[50].

However, the provisions of Brussels I bis Regulation is applicable only to actions commenced after January 10, 2015. For actions commenced before such date, Brussels | Regulation[53] is applicable, the examination of which is beyond the scope of this article[52].

Exceptions to domestication and enforceability through the Brussels Regime
Even under the Brussels I bis Regulation, the debtor has defenses to domestication and enforceability of judgments originally issued by a European Union state. The debtor should introduce his objections before the Court designated by the state where enforcement will take place[53].

The defenses to domestication and enforceability, listed in Article 45 of the Regulation, include the following:

  • contrary to public policy with the express exclusion of rules governing jurisdiction;
  • a case where the defendant was not served with the summons in a time and in a way to enable him to defend himself and, as a consequence, the court entered a default judgment, unless the defendant failed to challenge the judgment when he had occasion to do so;
  • existence of an irreconcilable conflict with another judgment between the same parties in the state where domestication or enforcement is sought;
  • existence of an irreconcilable conflict with another previous judgment issued inside or outside the European Union between the same parties and on the same matter that could be domesticated in the European Union state where enforcement is sought, violation of rules governing jurisdiction in certain cases of insurance law, consumer law, or employment law where the Regulation considers the defendant as a weaker party; or
  • in other cases where the jurisdiction is exclusive[54].

Therefore, every judicial order originally issued by a Court of a European Union state is enforceable without further proceeding within the boundaries of the European Union even if it is not final, provided that the matter falls in the definition of civil and commercial matters and that the court of origin has issued a certificate of enforceability. However, the defendant can still challenge such enforceability by introducing one of the defenses mentioned above before the court designated in advance by the European Union state where the judgment has to be executed.

Territorial extension of the Brussels Regime and domestication of American judgments to some non-European Union states
A version of the Brussels Regime is applicable also in Switzerland, Norway, and Iceland,[55],[56] all non-European Union states. In fact, in 1988 these states signed the Lugano Convention with the European Union, which extended the then Brussels Convention to them without substantial modifications.[57],[58] A New Lugano Convention was adopted in 2007[59] to adapt the modification of the Brussels Regime to the Brussels I Regulation of 2000, but an update to the Convention to the Brussels I bis Regulation, issued in 2012[60], still has to be made. Thus, Switzerland, Norway, and Iceland still apply the Brussels Regime as defined in the Brussels I Regulation.

The main difference from the law applicable in the European Union is that under the New Lugano Convention, the court that should enforce the judgment executes a jurisdictional check on the judgment and issues a certificate of enforceability, while under Brussels I bis Regulation, the court that entered the judgment also issues the certificate of enforceability[61]. However, the Court of Justice of the European Union, appointed to interpret the New Lugano Convention and the Brussels I bis Regulation, gives a uniform interpretation to both the instruments[62].

Conclusion
Once an American judgment is domesticated in one of the European Union states, it can be enforced in that state. However, the effect of such domestication does not extend to other European Union states, as the Court of Justice of the European Union has held in Owen Bank v. Bracco. Thus, the American judgment should be domesticated in each European Union state according to the domesticating procedures established in each state.

In the alternative, to benefit from the Brussels Regime, the American contractual creditor might consider commencing litigation against the contractual debtor before the trial court of one of the European Union states, which permit easier cross border enforcement inside the European Union. Otherwise the contractual creditor risks losing assets on which to execute the judgment by evasion of enforcement by movement from one European Union state to another.

Massimo Reboa is a graduate in law from Roma Tre University in Rome, Italy, and Nova Southeastern University College of Law. He is member of the Florida Bar practicing law in South Florida. He can be reached at massimo@reboa.org].

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu]. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here].

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


[1]. Convention on judicial assistance in civil and commercial matters between the French Republic and the Eastern Republic of Uruguay, 16 Sep 1991 (I-36556).
[2]. Ronal A. Brand, Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments, 74 U. Pitt. L. Rev. 491, 496 (2013).
[3]. See generally United States § 21, 1 Enforcement of Foreign Judgments (Wolker Kluwer) (December 2014).
[4]. Cfr. 3 Crisanto Mandrioli & Antonio Carratta, Diritto Processuale Civile [Civil Procedure Law] 366 (Giappichelli Editore, 21st ed. 2011).
[5]. L. n. 218/1995.
[6]. Id., Art. 64 L. n. 218/1995.
[7]. Id. at Art. 67.
[8]. Crisanto Mandrioli & Antonio Carratta, Diritto Processuale Civile [Civil Procedure Law] 374 (Giappichelli Editore, 21st ed. 2011).
[9]. Id., at Art. 64. Cfr. Cass., 6 dicembre 2002, n. 17349, Giust. Civ. Mass. 2002, 2133.
[10]. Cass., sez. III, 19 gennaio 2007, n. 1183, Giur. it. 2008, 395 (defining public policy as the fundamental and distinguishable juridical-ethical principles of a judicial system in a certain historical period).
[11]. Art. 67 L. n. 218/1995; 3 Crisanto Mandrioli & Antonio Carratta, Diritto Processuale Civile [Civil Procedure Law] 373, 374 (Giappichelli Editore, 21st ed. 2011).
[12]. Ley de cooperacio´n juri´dica internacional en materia civil [Law of international cooperation in civil matters] (B.O.E. 2015, 29).
[13]. Id., Preámbulo II.
[14]. Ley de Enjuiciamiento Civil [Civil Procedure Law] Artículo 953 (BOE 1881, 813). This law is still applicable today.
[15]. Ley de cooperacio´n juri´dica internacional en materia civil [Law of international cooperation in civil matters] Artículo 48 (B.O.E. 2015, 29).
[16]. Id., Artículo 46 § 1.
[17]. Carlos Esplugues Mota, Recognition and Enforcement of Foreign Arbitration Awards in Spain and Public Policy 6 (November 1, 2011), http://ssrn.com/abstract=1952770.
[18]. See supra, p. 3.
[19]. Id., Artículo 52 § 1, 52 § 2.
[20]. Id., Artículo 54 §1.
[21]. Ley de Enjuiciamiento Civil [Civil Procedure Law] Artículo 518 (BOE 1881, 813); Tribunal Supremo, October 16, 2014, n. 573, STS 4838/2014.
[22]. Id., Artículo 54 § 5-7.
[23]. Id., Artículo 55.
[24]. Internationales Privatrecht [Private International Law], Gesetz c. 91/2012 Coll, § 14.
[25]. Id., § 15.
[26]. See supra, p. 3.
[27]. Id., § 16.
[28]. The Schengen Area is a policy of the European Union to create an open-border area in which almost all the European Union states participate. The Area is regulated by multiple legislative acts of the European Union.
[29]. Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2012 O.J. (L 351) 1 [hereinafter Brussels I bis Regulation].
[30]. See infra p. 8; Olivia Lopes Pegna, Il Regime di Circolazione delle Decisioni nel Regolamento (Ue) N. 1215/2012 («Bruxelles I-Bis») [The Regime of Circulation of Opinions in Reg. (EU) n. 1215/2012 («Bruxelles I-Bis»)], 4/2013 Rivista di Diritto Internazionale [Periodical of International Law] 1206, 1212 (2013) (It.).
[31]. Id. at Article 36.
[32]. Id. at Article 39.
[33]. The Court of Justice of the European Union hears cases in direct proceedings against Member States or European Union institutions not fulfilling their obligations under European Union law or in indirect proceedings, when an issue of interpretation of European Union law exists. Competences of the Court of Justice of the European Union, http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_1.3.10.html.
Therefore, in most of the cases the Court hears private persons and entities through indirect proceeding. This is called preliminary ruling. If an issue of interpretation of European Union law is raised, the court of the European Union Member State before which the case is pending may refer (or should seek, when the case is pending before a court of last instance) the matter to the Court of Justice of the European Union. A preliminary ruling is comparable to a certified question in the American court system.
[34]. Case C-129/92, Owens Bank Ltd. v. Fulvio Bracco and Bracco Industria Chimica SpA, 1994 E.C.R. I-146, I-155.
[35]. As evidence of this, the Court highlighted the absence of a provision to determine venue for judgments previously domesticated in another European Union state. Owens Bank Ltd. v. Fulvio Bracco and Bracco Industria Chimica SpA, 1994 E.C.R. I-146, I-153.
[36]. Convention 72/454/CEE, J.O. (L 299) 32.
[37]. Council Regulation 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001 O.J. (L 12) (EC) [hereinafter Brussels I Regulation].
[38]. See Adrian Briggs, Civil Jurisdiction and Judgments 347 (Informa Law ed., 6th ed. 2015) (recalling the value of Owens Bank Ltd. v. Fulvio Bracco and Bracco Industria Chimica SpA case).
[39]. Owens Bank Ltd. v. Fulvio Bracco and Bracco Industria Chimica SpA, 1994 E.C.R. I-146.
[40]. See supra, note 27.
[41]. Brussels I bis Regulation, supra note 29, Article 1 § 1.
[42]. Id. at Article 2 § 1 (a).
[43]. The domestication of judgments on family law matters is governed by Brussels II bis Regulation, Council Regulation (EC) 2201/2003, 2003 O.J. (L 338) 1 (on jurisdiction and the domestication and enforcement of judgments in matrimonial matters and the matters of parental responsibility), and Maintenance Regulation, Council Regulation (EU) 1259/2010, 2010 O.J. (L 343) 10 (implementing enhanced cooperation in the area of separation).
[44]. Brussels I bis Regulation, supra note 29, Article 1 § 2.
[45]. Id. at Article 4 § 1.
[46]. Id. at Article 5 §§ 1, 2.
[47]. Id. at Article 6 § 1.
[48]. Brussels I bis Regulation, supra note 29, Articles 37 § 1, 53.
[49]. Id. at Article 42 § 1.
[50]. Id. at Article 43 § 1.
[51]. Council Regulation (CE) 44/2001, 2012 O.J. (L 351) 1 [hereinafter Brussels I Regulation].
[52]. Brussels I bis Regulation, supra note 29, Article 66.
[53]. Id. at Articles 46, 47 § 1.
[54]. Id. at Article 45.
[55]. Switzerland, Norway, and Iceland are all EFTA states. EFTA is an association of European states to promote free trades among their members. Liechtenstein is a state member of EFTA, but is not part of the Lugano Convention.
[56]. Even Denmark signed the Lugano Convention; therefore, in Denmark, both the Brussels I bis Regulation and the New Lugano Convention are applicable, but the Brussels I bis Regulation prevails over the New Lugano Convention. Cfr. Brussels I bis Regulation, supra note 29, Recital 41.
[57]. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L 319) 9 [hereinafter Lugano Convention].
[58]. Id., Protocol 2.
[59]. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Oct. 30, 2007, 2007 O.J. (L 339) 3 [hereinafter New Lugano Convention]. The Convention is open for accession by:

  1. States which become Members of EFTA;
  2. Member States of the European Union acting for certain non-European territories that are subject to the Member State but are not part of the European Union, such as the Isle of Man for United Kingdom or Aruba for the Netherlands. However, none of them has acceded to the Convention; and
  3. Any other State that received the unanimous consent of the contracting parties. Id., at Article 70.

[60]. Id., Preamble (“Taking into account […] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which has replaced the abovementioned Brussels Convention”).
[61]. Id. at Article 38 § 1.
[62]. Id.

Handing Narrative Evidence at Trial: Not an Easy Task

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written by NITA guest bloggers Federica Turetta and Professor Michael J. Dale

Trials allow parties to persuade the judge or jurors by recounting their version of the historical facts. The National Institute for Trial Advocacy (NITA) describes this process as “storytelling.” However, in addition to persuasiveness, a story presented at trial obviously must consist of admissible evidence. This then requires the lawyer to present witnesses who can describe what happened in a way that avoids objection.

There are least two different ways to address a question on direct examination. A lawyer may frame a question in such a way as to elicit a very specific answer from the witness. Alternately, the lawyer can invite the witness to explain her story in her own words[1].

Usually, witness examination proceeds in question-and-answer format. This approach ensures that opposing counsel has the opportunity to present objections to the question before the answer is given[2]. For this reason, a problem can arise when the lawyer asks the witness, generally, to tell the jurors what happened[3]. The problem with this mode of interrogation—the narrative question—is that it calls for a narrative answer.

A narrative answer is one that continues at some length in the absence of question. A narrative question and answer create a serious problem for opposing counsel because the opposing counsel can object only after the jurors have heard all or part of the answer[4]. In other words, opposing counsel cannot prepare an objection based on the question. It is something in the content of the answer that is objectionable.

Unfortunately, it is not easy to define the term narrative evidence. Indeed, neither the Federal Rules of Evidence nor state evidence codes provide any specific definition, leaving its meaning and admissibility to the discretion of the judge. The absence of any specific rule leads to another question. On what basis does the judge exercise discretion to sustain an objection to testimony as narrative? One knows that under Federal Rule of Evidence 611(a), the judge, in controlling the mode of interrogating the witness, must balance the probative value of the narrative evidence against the prejudice of exposing the jury to inadmissible evidence[5]. The balancing and the control over the mode of examining witnesses and presenting evidence are essential to render those procedures effective in determining the truth. American case law has developed some common factors helpful in understanding how the judge exercises her discretion in balancing the evidence[6].

For example, the judge can decide whether the witness has demonstrated any propensity testify to about inadmissible matters[7]. Another situation in which a judge might exercise discretion in allowing the introduction of narrative evidence is whether the use of such evidence affects the objecting party’s substantial right under the principle of undue prejudice[8]. Thus, under Federal Rules of Evidence 403, the use of relevant evidence, regardless of whether it is in narrative form, is outweighed only by the danger of unfair prejudice[9]. In the absence of this prejudice, the use of narrative evidence is per se harmless[10].

Another issue involving the introduction of narrative evidence arises when its use does not produce a factual outcome different from what it otherwise would have been had the evidence come in through question-and-answer format[11]. In other words, both the introduction of evidence in question-and-answer format and in a narrative format would have led to the same result. To reach this conclusion, the judge has to evaluate the weight of all the other evidence to determine whether the party offering the evidence objected to on narrative grounds would have been in the same position without introducing the narrative evidence[12].

There are, however, theories that underlie the positive aspects of the narrative evidence. Indeed, in United States v. Pless, the court found that “[t]here is . . . nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”[13]

In addition, as the reported case law demonstrates, in the absence of any specific rule of evidence, it is within the sole discretion of the trial judge to control the form of examination of witnesses. Thus, it is in the judge’s discretion to determine whether a witness will be required to testify by a specific question and answer or in narrative format, and the judge’s decision is reviewable only for abuse of discretion[14].

Therefore, the only way to avoid the introduction of narrative evidence is through the prompt use of an objection. Opposing counsel must then make a motion to strike the objectionable portion of the narrative answer and ask that the jurors be admonished to disregard it. As NITA teaches, the purpose of objecting is to prevent the introduction or contemplation of inadmissible information at the time the information is provided[15]. The objection, obviously, must be timely. The party objecting to narrative testimony can neither obtain retroactive benefit from a subsequent objection nor broaden the scope of such objection[16].

Sometimes, the objection to narrative evidence has the effect of misleading the questioning party into believing that the evidence is inadmissible in its entirety[17]. The use of a series of successful objections could lead the examining party to give up on the question and the area of inquiry[18]. This is because every time an objection to a question calling for a narrative response is sustained, the objecting party has convinced the court and the examining lawyer that he otherwise will be deprived of the right to object until it is too late[19]. Although it should not, this atmosphere in the courtroom can consequently lead the party examining lawyer to fail to establish a critical line of testimony[20]. The response of the examining lawyer should be to return to the question-and-answer format of eliciting testimony.

Another situation in which judges usually overrule the objection to a question calling for a narrative answer is when the evidence and means of interrogation of a witness have already been submitted to the opposing party. Under Rule 75(c) of the Federal Rules of Civil Procedure, a party can request the use of evidence in narrative form, providing at the same time, copies of the testimony to the other party[21]. When the party asking for the introduction of evidence in narrative form complies with the requirement of Rule 75(c), the opposing party is still allowed thirty days to object to the testimony or propose amendments that can be in either narrative or question-and-answer form[22]. Any objection or amendments must be submitted to the judge for approval[23]. Consequently, the failure to comply with the prescribed time period bars the opposing party from later raising objection regarding the testimony in narrative form[24].

However, probably the leading factor that may influence the judge’s decision in employing discretion in allowing narrative evidence is whether the case is being tried to a jury. The only reality that counts in a case tried in front of a jury is the jury’s reality[25]. “The jury perception of reality is the reality.”[26] Therefore, all the communication inside the courtroom must be juror centered[27]. A good story, well told, can make a difference between winning or losing a case. Jurors listen, remember, and are molded by it, fitting the evidence into the story that makes the most sense to them[28]. Consequently, it is fundamental to plan and execute the introduction of evidence from the jury’s point of view[29]. If the subject is not persuasive for the jury, it is not worth pursuing at all[30]. Evidence in narrative form, if it is to be used, must be both admissible and persuasive. The effect of inadmissible evidence on the jury is greater than on a judge. A judge, by definition, is impartial. Therefore, he should be better able to handle the introduction of inadmissible evidence. The same cannot be said for jurors, who may make decisions based in part upon narrative evidence they heard but which was stricken after the fact pursuant to an objection. The goal of every lawyer is to get sufficient autonomy from the judge on the content of the examination for it to be persuasive to the jurors. This may or may not a lead to the use of narrative evidence.

For all these reasons, judges exercise substantial discretion in the admissibility of narrative evidence when a case is tried in front of a jury. The effect on the jurors may be catastrophic because a narrative answer heard first by jurors may not give opposing counsel a reasonable opportunity to make a timely and effective objection.

Finally, a brief comment may be helpful when the testimony is by an expert witness. Federal Rule of Evidence 702 permits an expert to testify in the form of an opinion when scientific, technical, or other specialized knowledge will be helpful to understand or to determine a fact in issue[31]. As the Rule provides, a witness can be qualified as an expert when he has greater knowledge, skill, experience, training, or education than an average person[32]. His qualifications, opinions, and the bases for those opinions should be informative evidence for the jurors to understand unfamiliar terms and concepts. It is sometimes impossible, or at least very difficult, to conduct the examination in the question-and-answer format. The technical nature of the issue involved may require the expert to testify in a narrative form in order to render the information understandable to an average person and perhaps to a judge. In a situation like this, however, an objection can be raised when the expert witness, instead of relying on relevant special skills, is merely trying to introduce evidence that would not be otherwise admissible[33]. Indeed, the testimony of an expert witness is still subject to the relevant test analysis under Federal Rule of Evidence 403[34].

In conclusion, there is no single factor or specific evidentiary rule to follow when dealing with the introduction of narrative evidence. Its admissibility is in the discretion of the judge. The best system to follow, then, is to object at the outset when one believes inadmissible evidence will come in through the narrative. If that is unsuccessful, one should object to each inadmissible portion of the narrative and move to have it stricken and the jurors admonished to disregard it.

Federica Turetta is a graduate of Roma Tre University, Rome, Italy, and a dual degree student at Nova Southeastern University College of Law, where she is a research assistant to Professor Michael J. Dale. She can be reached at federicaturetta@gmail.com.

Michael J. Dale is a member of the faculty at Nova Southeastern University Shepard Broad College of Law. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. He can be reached at dalem@nova.edu. Click here to read more articles co-authored by Professor Dale’s research assistants.

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[1] Examination of Witnesses § 3:9, Westlaw (database updated May 2014).
[2] Justice Mark B. Simons, Other Objections to Form of Question—Calls for a Narrative Answer § 3:35, Westlaw (database updated Jan. 2017).
[3] Id.
[4] John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers § 32:3, Westlaw (database updated Nov. 2016).
[5] Fed. R. Evid. 611(a).
[6] Significantly, here is no equivalent legal institution like case law precedent in most of the European systems. For example, in Italy, Rule 511 of the Code of Criminal Procedure (“c.p.p.”) regulates which evidence can be introduced through the reading of some of the materials already present in the Pre-Discovery Folder (“Fascicolo del Dibattimento”). The reading of the material in a narrative form is disposed under the discretion of the judge. However, the in person examination of the witness is always preferred. Furthermore, there as some limits to the narrative reading of some evidence; for example, the as is reading of some documents, like petitions or motions, can be used only to verify the legal basis to move forward with the process. Therefore, their content, in narrative form, cannot be used to reach a verdict. Rule 511 c.p.p., most of the time, must be read together with Rule 514 c.p.p. Rule 514 c.p.p. regulates, more specifically, which evidence, in narrative form, can be introduce in the process.
[7] Examination of Witnesses § 11:11, Westlaw (database updated Sept. 2016).
[8] United States v. Silva, 748 F.2d 263, 264 (5th Cir. 1984).
[9] Fed. R. Evid. 403.
[10] Silva, 748 F.2d at 264.
[11] Hall, supra note 4.
[12] People v. Dickman, 253 N.E.2d 546, 547 ̶ 48 (Ill. App. 1969); see also Goldsmith v. Newhouse, 72 P. 809, 810 (Colo. App. 1903).
[13] United States v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992).
[14] State v. Wren, 498 S.W.2d 806, 810 (Mo. App. 1973).
[15] Steven Lubet & J. C. Lore, Modern Trial Advocacy: Analysis & Practice 232 (National Institute of Trial Advocacy, 5th ed. 2015).
[16] Id.
[17] James W. McElhaney, Trial Notebook 39, 534 (American Bar Association, 3rd ed. 1994).
[18] Id.
[19] Id.
[20] Id.
[21] Fed. R. Civ. P. 75(c).
[22] Hall v. Gordon, 119 F.2d 463, 464 (D.C. Cir. 1941).
[23] Id.
[24] Id.
[25] Thomas A. Mauet, Trial Techniques 23 ̶ 24 (Wolters Kluwer, 8th ed. 2010).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Fed. R. Evid. 702.
[32] Id.
[33] See generally Charles H. Rose, Fundamental Trial Advocacy 240 ̶ 54 (2007).
[34] Fed. R. Evid. 403.

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