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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.

Blocking Statutes and the Hague Evidence Convention: Frustration for American Litigants in Transnational Litigation

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written by NITA guest bloggers Samantha E. Scheff and Michael J. Costello, II

Blocking statutes are laws enacted in countries with the purpose of frustrating litigation in the United States by prohibiting the production of evidence in courts in the United States that otherwise have jurisdiction[1]. International litigation in courts in the United States between American citizens and citizens of other countries has become more prevalent through globally conducted businesses and transnational commerce[2]. The purpose of enacting blocking statutes, as they are known, is to force the United States into strict compliance with the procedures promulgated by the Hague Evidence Convention on the Taking of Evidence Abroad in Civil or Commercial Matter (HEC)[3]. The reason foreign countries assert to enact these laws is to avoid compliance with United States discovery processes that are at odds with foreign discovery procedures and policies[4]. The United States regards these blocking statutes as a means of delaying litigation, barring access to evidence, and frustrating their legal system[5]. This article discusses the HEC and how American courts and lawyers deal with it.

The HEC was negotiated in 1970 to avoid countries from frustrating one another’s national sovereignty[6]. The HEC is a treaty allowing letters rogatory, or letters of request, to be sent from one court to another with the intention of having the foreign court order production of evidence[7]. For the most part, the treaty is concerned with allowing the jurisdiction requesting the evidence to continue to follow its rules of procedure as closely as possible[8].

The United States Supreme Court has firmly established in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa that, so long as personal jurisdiction exists under the Federal Rules of Civil Procedure, the HEC need not be the exclusive or even the first resort used to compel the production of documents or information from a foreign party[9]. The Court also held that a United States court may order the production of evidence even if doing so will violate a foreign blocking statute[10]. The ruling became United States policy—that American national interests will tend to be favored over international ones[11]. However, the rule is not absolute, and courts may employ a balancing test to determine whether they will grant comity to the foreign blocking statute. The balancing test used is taken from the Restatement (Third) of Foreign Relations Law[12]. The factors considered by the court are:

  • the importance of the documents to the litigation;
  • the specificity of the request;
  • whether the information originated in the United States;
  • the availability of alternate means to secure the information;
  • whether compliance with the request would undermine important interests in the foreign state; and
  • the extent to which noncompliance would undermine important interests of the United States.

A minority of jurisdictions, including the Third Circuit, simplified the test to three elements:

  1. prior scrutiny in each case of the particular facts;
  2. sovereign interests; and
  3. the likelihood that such resort will prove to be effective.[13]

Ultimately, the tests are very similar, and it is unlikely that using one or the other will be outcome determinative.

In re Activision Blizzard Stockholder Litigation[14], a state court case in Delaware, is an excellent example of how courts apply the majority balancing test from the Restatement. In this case, shareholders sued a Delaware corporation and its controlling stockholder, a French company, for allegedly breaching its fiduciary duties by transferring over 50 percent of its outstanding shares from the controlling stockholder to the corporation[15]. The shareholders filed a motion to compel discovery, and the French company objected on the ground that French law barred the production of discovery unless it was pursuant to the HEC[16]. The French blocking statute broadly prohibits any form of discovery in France for the use of foreign judicial proceedings, with penalties for disobeying this statute being the possibility of heavy fines or imprisonment[17]. The Delaware Chancery Court applied the balancing test and held that the action would proceed under both the Court of Chancery rules and the HEC[18]. The court found that the documents being requested were material to the case, specific in nature and not overly broad to comply with the HEC, and could not be obtained through alternative means[19]. With multiple business connections throughout the United States, it would make sense for this type of evidence to have originated in the United States, yet there was no definitive evidence establishing whether the documents originated in France or the United States[20].

When establishing whether compliance with the discovery request would undermine interests in France, the court looked directly to the French blocking statute[21]. The French blocking statute was broad and prohibited any person from conducting discovery for the purposes of any foreign litigation without focusing on any specific material or mentioning a French sovereign interest[22]. However, noncompliance would directly undermine Delaware’s interest in effectively litigating internal affairs within its corporations[23]. Furthermore, the French company was involved in many business ventures and had previously submitted to the jurisdiction of Delaware courts, by accepting a director position in a Delaware corporation, and in another suit disregarding blocking statutes where it was beneficial to the company[24]. Balancing these factors, the court gave the French company the opportunity to use the HEC to make a good faith effort to receive the requisite authorization from the French authorities for the discovery by the time the document production would be due in the Court of Chancery case[25]. However, if the process could not be completed by then, the French company was expected to produce the documents or face sanctions from the Delaware court[26]. It is important to point out that when the court was deciding whether to apply the HEC at all, it cited many reported American cases that perceive the HEC as lengthy, burdensome, and inefficient[27]. Further, even if the French company heard back from French authorities in the given time period, if those authorities chose not to comply with the letter of request, the court would then mandate the use the procedures available in the United States’ legal system[28]. This decision is a prime example of how American courts attempt to honor the HEC, but when there is as conflict with the United States legal system, the courts have found ways to support the United States national interest and sovereignty.

The Activision holding and other opinions do not create a bright-line rule governing whether a United States court will uphold a foreign blocking statute[29]. Courts will, therefore, make the determination based on the unique facts of each case using the balancing factors described above. However, it appears that foreign parties may be at a disadvantage, given the Supreme Court’s statement that it will weigh the United States’ interests more favorably than foreign interests[30]. The reality is that the enactment of foreign blocking statutes rarely prevent foreign litigants from having to comply with discovery orders from the Unites States’ jurisdiction. Overall, the courts have discretion when deciding whether to order the production of evidence or issue protective orders in response to these blocking statutes. This discretion began with the decision in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa and continues by the decades of developing case law demonstrating the trend of American courts choosing to use their own discovery procedures[31].

Yet, despite the widespread refusal of American courts to comply with foreign blocking statutes, the Second Circuit has apparently created a way for foreign companies to possibly avoid this result[32]. In re Sarrio[33], S.A. includes dictum stating that American law firms representing foreign companies need not provide documents falling under the scope of blocking statutes[34]. The case involved internal investigations by the SEC under 28 U.S.C. § 1782, which allows district courts to compel persons residing within their district to testify or produce documents for use in proceedings occurring in foreign jurisdictions, which is known as a subpoena duces tecum[35].

The Sarrio court cited Fisher v. United States[36], which recognized that documents that are undiscoverable in the hands of a law firm’s foreign client are subject to attorney–client privilege[37]. It went on to say that this reasoning is applicable to subpoenas duces tecum, because they lie outside the statutorily provided limits granting courts power to compel production[38]. Therefore, assuming the documents are held by the United States law firm for the purpose of legal review, it is likely that the Second Circuit would not compel discovery on the basis of attorney–client privilege. The Second Circuit ultimately does not want a result where documents that would not otherwise be within the scope of a subpoena suddenly fall within that scope simply because they are being used by a United States law firm[39]. Significantly, the bank involved in this case withdrew its objection to production, so the legal significance of this reasoning is dictum[40]. If courts in the Second Circuit choose to follow this approach, foreign companies can avoid violating their home country’s blocking statute by evoking attorney–client privilege.

In addition, banking secrecy laws may be considered a type of blocking statute because they functionally work the same way by including provisions that block foreign discovery. In general, these laws obligate banks to keep customer information private[41]. Banks in foreign jurisdictions are usually structured to ensure that the customer’s information is kept private, such as using pseudonyms for the accounts and insulating bank employees from the information[42]. While banking in jurisdictions such as Switzerland has enjoyed a substantial amount of privacy in the past, the current global trend has been moving toward open exchange of customer information. For example, in a proposed piece of French legislation commonly called “Sapin II,” a newly created anti-corruption enforcement body will have the authority to monitor compliance with the French blocking statute[43]. This could result in a change in the French courts’ reluctance to enforce it[44].

In 2010, the United States Congress passed the Foreign Account Tax Compliance Act (FATCA) in an attempt to curb tax evasion that was enabled by these banking secrecy laws[45]. The law requires reporting by U.S. taxpayers that meet certain criteria, specifically, taxpayers who have foreign financial accounts and offshore assets[46]. Foreign financial institutions are also required to report financial accounts held by U.S. taxpayers[47]. This would include foreign investment banks in jurisdictions where tax evaders have their assets[48].

Another important step in global tax transparency took place in 2014[49], when 101 nations committed to implementing a Common Reporting Standard was promulgated by the Organization for Economic Cooperation and Development (OECD)[50]. This helped ease the burden on financial institutions facing different compliance standards in various jurisdictions, which is credited with an increase of voluntary disclosures[51]. The recent Panama Papers leak may lead to additional pressure being placed on countries to join these types of initiatives. If this trend continues, banking secrecy laws may matter less over time.

To understand blocking statutes, it is important to recognize that the initiative of the HEC was to take into consideration the realities of international relations and ensure that litigation between foreign nations would afford respect for one another in regard to differing legal systems and policies. In large part, these blocking statutes were the direct response to the United States reluctance to adhere to the HEC when dealing with foreign litigants. Many countries with different legal systems view this reluctance to use the HEC, either exclusively or at least as a first resort, as a violation of their sovereignty[52]. Article 12 of the HEC establishes that blocking statutes should effectively prohibit disclosure by including an exception to the mandatory production of discovery requests where a request is offensive to the nation’s sovereignty[53]. Yet, when the United States courts are analyzing these blocking statutes, they are taking many factors into consideration, with the result that these statutes are often unenforced[54].

In an attempt to change the relaxed compliance with these blocking statutes by the United States and France, France is seriously considering more frequently enforcing its criminal sanctions for violations and raising the fines connected with these sanctions[55].

In conclusion, although the HEC is at issue in other countries, the HEC is more heavily litigated in the United States than in any other countries[56]. The United States is obviously a major player in international globalization, and many countries want to be involved with American companies. Yet these companies do not want to be subject to the United States legal system. The United States approach to resolution of disputes is based on zealous advocacy in court, and other countries are extremely against this type of judicial process[57]. The HEC was designed to acknowledgement different methods of discovery in international litigation, but has proven ineffective when it comes to foreign litigants in American courts. Blocking statutes have been put in place as a result of other nations’ frustration with the American courts, but have not had the impact on the American courts’ choice of law that these nations were seeking to attain by enacting of these laws. One way to accomplish more harmony in global business is to promote business contracts that include clauses setting forth both the governing law and the jurisdiction the parties will submit to in the event of legal disputes. Employing these clauses would make it easier to differentiate between actual sovereignty problems and business companies attempting to use blocking statutes as a means of avoiding compliance with the American litigation system. If protecting foreign sovereignty is the ultimate goal behind these blocking statutes, adding choice of law and forum selection clauses in international contracts could help solve the problem of compliance with blocking statutes.

Samantha E. Scheff and Michael J. Costello II are third-year students at Nova Southeastern University College of Law and research assistants to Professor Michael J. Dale.

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[1] Laurent Martinet & Ozan Akyurek, The Perils of Taking Discovery to France, 20 No. 5 PRAC. LITIGATOR 39 (2009).
[2] Foreign Blocking Statutes and Cross-Border Discovery, ARENT FOX (Mar. 10, 2014), https://www.arentfox.com/newsroom/alerts/foreign-blocking-statutes-and-cross-border-discovery#.WAPupjLMyYV.
[3] Id.
[4] Vivian G. Curran, United States Discovery and Foreign Blocking Statutes, 76 LA. L. REV. 1141, 1141 (2016).
[5] See, e.g., Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 542 (1987); In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[6] 28 U.S.C. § 1781; Curran, supra note 4, at 1143.
[7] Bureau of Consular Affairs, U.S. Dep’t of State, Preperation of Letters Rogatory, https://travel.state.gov/content/travel/en/legal-considerations/judicial/obtaining-evidence/preparation-letters-rogatory.html.
[8] James P. Springer, An Overview of International Evidence and Asset Gathering in Civil and Criminal Tax Cases, GEORGE WASHINGTON JOURNAL OF INTERNATIONAL LAW AND ECONOMICS 313 (1988).
[9] See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa 482 U.S. 522 (1987).
[10] “The United States Supreme Court has firmly established that, so long as personal jurisdiction exists, a U.S. court may order the production of evidence even if doing so will violate a foreign blocking statute.” Société, 482 U.S. at n. 29 (1987).
[11] “When there is any doubt, national interests will tend to be favored over foreign interests.” Id. (quoting Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 951 (1984).
[12] RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 442(1)(c).
[13] In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 300 (3d Cir. 2004).
[14] 86 A.3d 531 (Del. Ch. 2014).
[15] Id. at 532–33.
[16] Id. at 533.
[17] Id. at 536, 549.
[18] Id. at 541.
[19] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 543–45 (Del. Ch. 2014).
[20] Id. at 545.
[21] Id. at 543–45.
[22] Id.
[23] Id. at 547–48.
[24] In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 549–50 (Del. Ch. 2014).
[25] Id. at 550.
[26] Id. at 551.
[27] Id. at 546.
[28] Id. at 551.
[29] See, e.g., In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014).
[30] Société, 482 U.S. at n. 4 (1987).
[31] See id.; In re Activision Blizzard Stockholder Litigation, 86 A.3d 531, 546 (Del. Ch. 2014); Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012, at *5 (E.D.Pa. Mar. 6, 2012); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 53 (E.D.N.Y. 2010); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386,391 (D.N.J. 1987).
[32] Travis Robert-Ritter, Using Second Circuit Precedent to Fundamentally Change Multinational Corporations’ Global Foreign Corrupt Practices Act Internal Investigations, 8 B.Y.U. INT’L L. & MGMT. REV. 89 (2012).
[33] 119 F.3d 143 (2d Cir. 1997).
[34] Id. at 146.
[35] 28 U.S.C. § 1782.
[36] 425 U.S. 391 (1976).
[37] In re Sarrio, 119 F.3d at 146-48.
[38] Id.
[39] Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 169 (2d Cir. 2003).
[40] In re Sarrio, 119 F.3d at 144.
[41] G. Philip Rutledge, Bank Secrecy Laws: An American Perspective, 14 DICK. J. INT’L L. 601 (1996).
[42] Id.
[43] Latham & Watkins LLP, French Anti-Corruption Reform Expected in 2016 (April 11, 2016), http://www.lexology.com/library/detail.aspx?g=0477aaee-fcfd-4ab5-92a4-ab35418c75da.
[44] Ozan Akyurek, United States: French Blocking Statute: A Death Foretold?, MONDAQ (Feb. 12 2014), http://www.mondaq.com/unitedstates/x/292340/Trade+Regulation+Practices/French+Blocking+Statute+A+Death+Foretold.
[45] See irs.gov, Foreign Account Tax Compliance Act, https://www.irs.gov/businesses/corporations/foreign-account-tax-compliance-act-fatca (last updated Sept. 13, 2016).
[46] Id.
[47] Id.
[48] Id.
[49]OECD, Global Tax and Transparency: We Have the Tools, Now We Must Make them Work (2016), https://www.oecd.org/forum/oecdyearbook/global-tax-transparency-we-have-the-tools.htm.
[50] Id.
[51] Id.
[52] Mark A. Cotter, The Hague Evidence Convention: Selfish U.S. Interpretation Aggravates Foreign Signatories and Mandates Changes to Federal Discovery Rules, 6 FLA. J. INT’L L. 233, 247–48 (1991) (explaining that Germany, the United Kingdom, and France view the United States’ reluctance to adhere to the HEC as an infringement of their legal sovereignty).
[53] 28 U.S.C. § 1781; Cotter, supra note 52, at 244.
[54] See, e.g., In re Aircrash Near Roselawn, Indiana, 172 F.R.D. 295 (N.D. Ill. 1997) (court refused to issue a protective order in response to a French blocking statutes not only because it was meant to frustrate discovery, but also because it was rarely enforced).
[55] Curran, supra note 4, at 1147–48 (discussing how an “eminent French lawyer and former cabinet minister” advises that both American and French litigants need to take the French blocking statute seriously and that applying it more seriously is a way to establish that the statute is not the sham that American courts perceive it as).
[56] Cotter, supra note 52, at 245.
[57] See Curran, supra note 4, at 1141–42.

Demonstrative Evidence and Demonstrative Aids: Is There Really a Distinction?

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written by NITA guest bloggers Anastasia Pallagrosi and Michael J. Dale

Many lawyers and law students are familiar with Nita Liquor Commission v. Cut Rate Liquor and Jones, one of the most famous National Institute of Trial Advocacy fact patterns. In Nita Liquor Commission, the owner of a liquor store is charged with a civil violation of Nita Liquor Commission Regulations for knowingly selling alcoholic beverages to an intoxicated person, the famous disheveled Walter Watkins.

During discovery, the Commission provides the investigative report of Liquor Commission Investigator James Bier, who was present during the night of the alleged violation. In his report, Investigator Bier describes the event while seated in his car, which was set up for surveillance across the street south of the liquor store. Now, suppose Investigator Bier takes the stand, and the Commission lawyer asks him to give a full description of the scene, specifically the intersection. Also suppose that the lawyer, while questioning Investigator Bier, uses a diagram of the intersection to help jurors fully understand the investigator’s location and that of the liquor store. Is this diagram admissible demonstrative evidence, or is it a demonstrative aid?

To state the obvious, the party who bears the burden of proof must present relevant evidence of material facts. The means of proof can take various forms: live and recorded testimony and exhibits that can be real, documentary, illustrative, and demonstrative. But all have a common purpose: to prove or disprove, either independently or together with other evidence, any issue of material fact that is relevant to the case. Such means of establishing issues play an essential role at trial; they are commonly referred to as substantive evidence[1].

This blog post focuses on demonstrative evidence. Unfortunately, it is not easy to define the term demonstrative evidence. Indeed, no evidence code nor the Federal Rules of Evidence provide any specific definition, the sole reference being in the Advisory Committee’s Note to Federal Rule 611[2]. Additionally, the Advisory Committee’s Note to Rule 401 states that so-called background evidence—such as charts or photographs—must be universally admitted at trial as an aid that can provide a better understanding of facts[3]. One of the crucial questions, then, is this: What is the difference, if any, between demonstrative evidence and demonstrative aids?

Terms such demonstrative evidence and demonstrative aids are often confusing because of the absence of a clear definition of demonstrative evidence in the Federal Rules, where these terms are often loosely used. Courts refer to demonstrative evidence as any means used to display or explain other testimonial, documentary, real proof, or a judicially noticed fact[4]. Demonstrative evidence is, in short, any visual aid and object used to help the witnesses to demonstrate oral testimony[5]. It can assume various forms, such as models, charts, photographs, videos, or diagrams[6]. This kind of descriptive evidence can be depicted visually in an illustrative exhibit[7], which can be pre-made, prepared by counsel, or made by a witness during testimony[8].

Demonstrative aids, sometimes referred to as visual aids or illustrative aids, are tangible pieces of information that would seem to be exactly the same as demonstrative evidence. Notwithstanding the use of different terms, which contributes to confusion as to terminology, demonstrative aids serve the same purpose as demonstrative evidence[9]. They help the witness to better demonstrate oral testimony, and at the same time provide jurors with a better understanding of facts[10]. For example, a skeletal model referred to by an expert witness to describe the plaintiff’s bone damages in a tort action is demonstrative evidence—once, of course, the lawyer has requested that the model be marked as an exhibit[11]. On the other hand, not all the aids used to help the witness in her testimony are necessarily demonstrative evidence[12]. So, for example, the oral testimony of a witness is evidence, but a notepad containing bullet points from the same oral testimony is a demonstrative aid[13].

However, demonstrative evidence and demonstrative aids differ in one significant way: the former can be admitted into the jury room for the deliberation, whereas the latter cannot, the reason being that demonstrative aids simply implement or substitute for what the lawyer would be able to show with his own words[14]. That being said, the lawyer who wants an aid to be available to jurors must offer a demonstrative exhibit[15]. Of course, this does not mean that the exhibit will be automatically admitted into evidence. Indeed, in the event the exhibit is excluded by the judge, it may still assist the witness during testimony[16]. The issue then becomes how demonstrative evidence can be admitted at trial.

When speaking about admissibility of demonstrative evidence, one should keep in mind that the only limitation, other than relevance, is the judge’s discretion[17]. Federal Rule of Evidence 611(a) sets out the standards for the use of evidence, stating that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. The judge may admit or exclude demonstrative evidence, and her other ruling will be usually sustained unless it is shown that there was an abuse of discretion[18]. Moreover, to have the demonstrative aid admitted into evidence, the lawyer must be able to satisfy the test for admissibility, which includes a competent witness with personal knowledge except experts, relevant information, and a proper foundation for the exhibit’s admissibility. Despite the fact that an aid may be relevant, to have it admitted into evidence requires an additional showing that the evidence should not be excluded due to unfair prejudice, delay, because it misleads the jurors, or consumption of time which outweighs its probative value[19]. Thus, a judge must balance the potential prejudice that may derive by admission of demonstrative aids, whose value may be more substantially prejudicial than probative under Federal Rule 403[20].

So what if the aid is a diagram depicting the scene, as in the Nita Liquor Commission case? It might be helpful to briefly explain how this would work pragmatically at trial. First, Investigator Bier would have to make the scene relevant, the area depicted in the diagram. Then the diagram would have to be recognized by the witness, meaning that the witness—here, Investigator Bier—would have to testify that the diagram depicts a certain area which with he is familiar. He would also have to give an explanation as to why he is familiar with the area. He would then testify that the scene depicted in the diagram is a fair and accurate representation of the area on the date in question. After laying foundation for the diagram, the lawyer may offer the illustrative exhibit “for identification” into evidence. However, the diagram might not to be to scale. It need be fair, accurate, and of assistance to the witness. In this situation, opposing counsel may ask for a limiting instruction to the jurors. And the final word, of course, rests with the judge.

In conclusion, then, the key distinction between a demonstrative aid and demonstrative evidence appears to be that the latter comes into evidence and can be reviewed by the jurors during deliberations.

Anastasia Pallagrosi 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 anapallagrosi@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. 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. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

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[1]Robert D. Brain & Daniel J. Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Value,” 25 U.C. Davis L. Rev. 957, 972 (1992).
[2]Fed. R. Evid. 611.
[3]Fed. R. Evid. 401.
[4] Brain & Broderick, supra note 1, at 968–69.
[5] Edward J. Imwinkelried, Evidentiary Foundations 130 (Lexis Nexis, 7th ed. 2008).
[6] Brain & Broderick, supra note 1, at 968–69.
[7] Courts will usually allow the use of exhibits if they can help jurors better understand the facts of a case. However, terminology is loose as to whether such exhibits should be identified as “illustrative” or “demonstrative.” Indeed, exhibits are used both for demonstrative and illustrative purposes. See Scott D. Lane & Fred Lane, Lane Goldstein Trial Technique § 12:29 (3d 2016).
[8] Brain & Broderick, supra note 1, at 969.
[9] Mary Quinn Cooper, “The Use of Demonstrative Exhibits at Trial,” 34 Tulsa L. J. 567, 567 (1999).
[10] Id. at 568.
[11] Imwinkelried, supra note 5, at 132.
[12] Cooper, supra note 9, at 570.
[13] John F. Rooney, “The Importance of Demonstrative Evidence,” Melick & Porter Blog (Aug. 27, 2016), http://www.melicklaw.com/?t=40&an=9758.
[14] Id.
[15] Imwinkelried, supra note 5, at 132.
[16] Cooper, supra note 9, at 570.
[17] Imwinkelried, supra note 5, at 131.
[18] Michael Sudman, “The Jury Trial: History, Jury Selection, and the Use of Demonstrative Evidence,” 1 J. Legal Advoc. & Prac. 172, 183 (1999).
[19] Fed. R. Evid. 403.
[20] Id.

An Overview of the 2015 Amendments to the Federal Rules of Civil Procedure

Posted On By

written by NITA guest bloggers Tereza Horáková and Michael J. Dale

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.

This quote comes from the 2015 Year-End Report on the Federal Judiciary issued by the Chief Justice John G. Roberts. Chief Justice Roberts[1] was addressing the protracted, antagonistic, and wasteful discovery practices often present in today’s litigation. The eradication of such practices became the main focus of the Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015 (hereinafter the 2015 Amendments). The 2015 Amendments represent one of the most significant changes to the Federal Rules of Civil Procedure in years. In the words of Chief Justice Roberts himself, they provide a concrete opportunity for actually getting something done[2].

While the 2015 Amendments address several topics, the most important changes affect Rule 26 defining the scope of the discovery and, most notably, electronic discovery. This post provides an overview of the impact and meaning of the 2015 Amendments to Rule 26 and how it will affect everyday federal litigation practice.

Return of Proportionality
A potential game changer with respect to discovery practice is the re-introduction of proportionality. The 2015 Amendments restore six proportionality factors to their original place in Rule 26(b)(1) and point out that parties must consider proportionality in all aspects of discovery. In particular, the Rule 26 was amended, with deletions stricken through and additions underlined:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. [3]

Proportionality: Not a New Concept
The proportionality factors were first adopted in 1983 as an integral part of the scope of discovery provisions, with the objective to deal with the problem of overdiscovery and encourage judges to be more active in identifying and discouraging discovery overuse[4]. Ensuing amendments separated the proportionality language from the integral scope of discovery provision into a separate paragraph[5]. While the 1993 amendments made clear that the separation was intended merely for ease of reference and explicitly encouraged their active judicial use, the courts were nevertheless reluctant to limit the use of the discovery devices[6]. The amendments adopted in 2000 incorporated an otherwise redundant cross-reference and further urged the courts to apply the proportionality limitations, albeit to no avail[7].

It was the 2015 Amendments that finally brought a change. Before the 2015 Amendments, the proportionality factors appeared in subsection Rule 26(b)(2)(C), which governs court-ordered limitations on discovery and, therefore, operated as a limitation used in motions for a protective order[8]. The return of the proportionality factors to their original place in Rule 26(b)(1) makes them again an express component of the very definition of the permissible scope of discovery[9].

Underlying Reasons for the 2015 Amendments
The reasons for doing so are directly connected to the explosion of discoverable information. The technological progress of the last decades has created ample opportunities for abuse of discovery tools as instruments of delay or oppression[10]. With the advance of e-discovery, its cost apparently often exceeds its utility and the potential for abuse is ever more present[11]. As a consequence, one of the goals of integrating proportionality into the definition of discovery in the Federal Rules of Civil Procedure is to reduce its costs and remind both the courts and parties what should and should not be discoverable in any case[12].

The 2015 Amendments further advocate for active judicial involvement and supervision especially early in the case[13]. However, judicial activism is also advised later on in cases where parties cannot overcome on their own important differences leading to ineffective case management[14].

“The Point Is to Make Sure We Don’t Look Just at the Dollars”
The 2015 Amendments point out that monetary stakes are only one of the proportionality factors to be considered[15]. In fact, the courts should approach the factors in an evenhanded manner. Discovery requests addressed to an impecunious party do not automatically foreclose discovery, just as a party’s wealth does not justify limitless requests[16]. Similarly, important personal or public issues often connected to public policy such as discrimination or First Amendment cases must be taken into consideration even if they are involved in litigation over small or no amounts of money at all[17]. Moreover, the 2015 Amendments recognize that some cases involve an information asymmetry where a party seeking discovery of information may know little in comparison to the other party[18]. This asymmetry may justify one party bearing heavier discovery costs than the other.

Deleted Provisions
While the 2015 Amendments added some language, they also deleted three sections of the Rule 26(b)(1) for various reasons.

First, it is the enumerative list of discoverable matters [19] (“. . . existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter”). The Advisory Committee on Civil Rules has explained that the list is so deeply entrenched in practice that the language is simply redundant. Nevertheless, the list of discoverable matters remains the same regardless of eradication of the express language of Rule 26(b)(1)[20].

Second, the 2015 Amendments omit the provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. As it turns out, the scope of discovery with respect to matter relevant to a claim or defense and matter relevant to the subject matter in fact overlaps and the latter was rarely employed[21].

Third, the 2015 Amendments modified a problematic phrase regarding relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence. The “reasonably calculated” test was sometimes incorrectly interpreted as a general scope of discovery tied to the probability of discovering admissible evidence which in effect eliminated all other limits[22]. The language is now replaced with a direct statement that information within the scope of discovery need not be admissible in evidence to be discoverable, such as hearsay testimony solicited during a deposition[23]. In this way, Rule 26(b)(1) makes clear that discovery of nonprivileged information not admissible in evidence remains available as long as it is otherwise within the scope of discovery[24].

Relaxation of the Early Discovery Moratorium
Another important change in the 2015 Amendments concerns the time for serving a request for production under Rule 26(d). Prior to the 2015 Amendments, a party could not usually serve any discovery requests before meeting for a conference under Rule 26(f), which typically happens months after a complaint is filed[25]. The 2015 Amendments allow requests for production to be served as soon as twenty-two days after service of process regardless of whether the Rule 26(f) conference already took place[26].

The aim of allowing early requests for production was to make Rule 26(f) conferences more productive. Specifically, negotiations at the conference may be more fruitful with the knowledge gained from each party’s initial set of requests for production, thus facilitating a more focused discussion[27]. On the other hand, it is arguable whether parties will seize this new opportunity because doing so would provide the opposing party more time to prepare objections[28]. Furthermore, the early requests may turn out to be inconsistent with agreements later concluded at the Rule 26(f) conference[29].

Effect on (Pending) Matters
Although it would be premature to jump to conclusions as to the impact of the 2015 Amendments, there are already some signs that courts have been making use of the amended Rule 26 and its proportionality principles. For example, in Henry v. Morgan’s Hotel Group, a court in the Southern District of New York declined to grant a Rule 45 subpoena because the discovery request for “all documents and communications” was determined to be overly broad and the requested information was not relevant to the disputed issues[30].

Similarly, in Gilead Sciences v. Merck in the Northern District of California, the court declined to grant additional discovery[31]. The court found that no reason had been provided to doubt the proof tendered by the plaintiff, and given the cost and potential delay, additional discovery on that topic was precisely the kind of disproportionate discovery that Rule 26 was intended to preclude[32].

Conclusion
While it is undeniable that the 2015 Amendment stirred up the litigation waters of federal court discovery, its true impact on practitioners and litigants and potential to reshape certain discovery practices remains to be seen. Finally, further information about the 2015 Amendments may be found in the entire amendments packet sent to Congress.

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Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, 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 tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. 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. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

[1] John G. Roberts, 2015 Year-End Report on the Federal Judiciary 11 (2015).

[2] Id.

[3] Fed. R. Civ. P. 26(b)(1).

[4] See Fed. R. Civ. P. 26 Advisory Committee’s Notes to 2015 Amendment (hereinafter 2015 Notes).

[5] Id.

[6] Id.

[7] Id.

[8] Leeron Morad, Andrew Bramhall, Digging Through The New Federal Rules of Civil Procedure, Law360 (May 26, 2015), http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure (hereinafter Law 360).

[9] Id. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[10] 2015 Notes.

[11] Jennifer A. Brennan, Hon. John M. Facciola, Hon. Mary M. Rowland, Just Follow the Rules! FRCP amendments could be e-discovery game changer, Metropolitan Corporate Counsel (Jul. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[12] Law 360.

[13] 2015 Notes.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Law 360.

[19] 2015 Notes.

[20] Id.

[21] Id.

[22] Id.

[23] Jennifer A. Brennan, Wendy Butler Curtis, FRCP Amendments: The Early Returns Courts Show Signs of Heeding the Call for Early and Active Management, Metropolitan Corporate Counsel (Mar. 3, 2016), http://www.metrocorpcounsel.com/articles/33591/frcp-amendments-early-returns-courts-show-signs-heeding-call-early-and-active-managem.

[24] Id.

[25] Law 360.

[26] Fed. R. Civ. P. 26(d).

[27] Law 360.

[28] Id.

[29] Id.

[30] Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016).

[31] Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13-CV-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016).

[32] Id.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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