In-House Counsel, Legal Ethics, Litigators

Inside Straight: Overseeing International Litigation

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

I’ve spent my whole life watching my ignorance be exposed.

When I worked at a small firm in California, I thought the whole litigation world was my oyster: We handled all civil cases (other than immigration or family law matters) in all state and federal courts in California.

I moved to a huge firm in Cleveland and lost my bearings: I now held myself out as being able to handle any civil case filed in any court in the United States. (This was a big change. When I worked in California, at least I knew what advance sheets to read. Cleveland set me adrift at sea.) Now, surely, the world was my oyster.

Wrong again. Now I’ve gone in-house, and I’m ultimately responsible for all litigation filed against my company anywhere in the world. The world is my oyster….

You’ll be pleased to read that I actually have a point here, other than regaling you with fascinating details about my personal life. In fact, I have two points.

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Both points expose my ignorance.

First, there’s the lesson I’m learning in comparative civil procedure. When I talk to outside counsel about a lawsuit pending in the United States, I have a reasonably good sense of what’s going on. My mind is in gear.

But when I talk to outside counsel overseas, I’m clueless. I now have a standard litany before I start one of these conversations:

“Before we talk about my particular case, I have to ask you a few questions. First, do you have juries in your country for a case such as mine? Second, in your country, does the losing party pay the winning party’s legal fees? Third, in your country, is it possible to learn before trial what evidence the other side is likely to present in court? If so, is that procedure restricted to learning in advance what documents the other side will offer, or are we allowed to put the other side’s witnesses under oath and learn before trial what the oral trial testimony is likely to be? In your country, is it possible to get out of a lawsuit before a trial is held? If so, when will we have those opportunities, and what standards will the court apply?” Finally, in a few (but by no means all) countries, “Can we trust the judicial system, or are the judges typically corrupt?”

Then we can talk.

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This has been fascinating (to me, at least, but I realize I’m a little odd) in several ways. I never before focused on what a U.S.-centric litigation life I had been living. There’s a brave new world out there, and I’d never given it a moment’s thought. Once I gave it thought, I was surprised by how few questions it actually takes to get one’s mind in gear. My standard litany hardly turns me into an expert in, say, Sudanese civil procedure, but my few questions are enough to elicit the general lay of the land. It’s also surprising to see that, so long as the judiciary is honest, it’s possible to participate in basically any type of judicial proceeding and be generally comfortable with the process. The rules of procedure vary wildly, but you can basically live with ’em all.

The second spot where I was ignorant involves a dicier issue. In the United States, the ethical rules forbid lawyers from threatening to initiate criminal proceedings to obtain an advantage in a civil case. So we don’t do that.

But the rules in, say, Sudan may not be so clear. (I’m picking on Sudan because it’s on the so-called OFAC list, which forbids U.S. companies from doing business there. So my employer is pretty unlikely to find itself before some Sudanese judge who’s ticked off because I made fun of his country in a post at Above the Law. You can’t be too careful, you know.)

(By the way, did I mention that I hold the Sudanese judiciary in the highest regard?)

Anyway, suppose opposing counsel in Sudan threatens my client (or my local counsel) with criminal proceedings to try to coerce settlement of a civil case. If that’s the way people litigate in Sudan, can I tell my local counsel to retaliate by threatening to initiate criminal proceedings of our own? Or am I constrained by American rules of propriety even when I’m playing in a Sudanese sandbox?

It would probably violate attorney-client privilege to reveal whether I’ve yet confronted this issue in my in-house job. And I must say that my initial reaction is to play by the American rules of ethics (for a host of reasons, including self-preservation). But I worry that while I’m playing by the Marquess of Queensberry Rules, the other side will be playing by the Marquis de Sade’s, and my client will suffer from my failure to be a sufficiently zealous advocate.

Here’s the beauty of having been invited to write for Above the Law: Now that I’ve posed this question publicly, it’s likely that some knowledgeable person will be able to provide an answer.

If so, I’m all ears. I’ve been ignorant for long enough.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at [email protected].

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