The growing challenge of international litigation

Posted: February 23, 2017

International litigation poses a host of challenges for firms and their clients, and the demand for services related to this litigation is rising.

The share of corporate counsel needing to conduct cross-border discovery rose to 41 percent in 2015-2016, up from 35 percent the year before, according to the Norton Rose Fulbright 2016 Litigation Trends Annual Survey. The survey also found that corporate counsel expressing a need to conduct cross-border discovery in more than half of their matters doubled from 7 percent to 14 percent.

blog-calloutInternational litigation adds layers of complexity to legal practice given the involvement of multiple sovereign states, each with its own laws related to personal jurisdiction, service of process, evidence, swearing of witnesses and discovery procedure.

“Virtually every case we have crosses borders,” Eric Lewis of the D.C.-based Lewis Baach law firm, told Forbes magazine. “We have coordinated litigation that was ongoing in more than a dozen jurisdictions at a time, from Pakistan to Panama, Saudi Arabia to Switzerland, Andorra to Argentina. Consideration now needs to be given as to where a dispute can or should be litigated, based on a variety of factors. One needs to understand the basic structure of other legal systems and be able to communicate effectively with lawyers from very different legal cultures. It takes time and also knowing what you don’t know.”

Cases can involve multiple international locations, parties, firms, lawyers, cultures, laws and witnesses. Firms must be expert at finding capable partners in each jurisdiction, coordinating dozens (or hundreds) of players, and interpreting documents in multiple languages, all while executing a single coherent strategy.

Discovery can be a particularly frustrating process in international settings. In fact, a wrong move could potentially get you arrested. Says the International Technology Law Blog, “[I]n most Asian (and other civil law) countries, discovery is conducted by judges, not attorneys, depositions and other formal discovery procedures do not exist, and attempts by foreign litigants to gather evidence contrary to local laws may be seen as violations of national sovereignty, for which criminal sanctions may be assessed.”

Other challenges in Asia can include reserving a permitted facility (book early), finding an interpreter with the specialized experience required for depositions, and getting the witness properly sworn in. (Most foreign countries do not have anyone who is a U.S. notary. The participants may have to go to the U.S. embassy to have a notary swear in a witness – or send an American court reporter or notary overseas.)

Videoconferencing is an increasingly valuable solution for easing some of the challenges of depositions in international cases. For pennies on the dollar, attorneys and witnesses can come face-to-face across continents, eliminating the time and cost of passports, airfare, hotels, expenses and billed fees for the entire trip.

Clients, partners, co-counsel, interpreters, experts, paralegals and others can join a remote deposition session from anywhere. Not only can they see and hear the witness, but they can track and annotate the real-time transcript as it’s developed, view electronic exhibits, and chat privately and securely through the software.

International litigation is complex. Our suggestion? Simplify when you can. Remote depositions are a good place to start.

Avi Stadler

Avi is a veteran litigator with deep experience in the financial industry, representing clients in federal and state court, arbitrations, investigations, and regulatory actions. He has handled numerous cases involving business disputes, professional liability, intellectual property, employment discrimination, and white collar crime. As a former adjunct professor at Georgia Tech and in the Emory Trial Techniques Program, he has trained hundreds of law students and law firm associates on deposition and trial advocacy.