Legal Translation to Prepare a Foreign Client for Litigation
Legal translation services play an important role in preparing a foreign client for a U.S. litigation. If you are an attorney who has represented a client from outside of the United States, then you know that such representation presents some unique challenges. First and foremost, if there is a language barrier, then you already know how important hiring a professional, top-notch legal translation service can be.
In addition, the differences in the legal culture between the United States and other legal systems from around the world can be disorienting for your foreign client. Accordingly, you need to take a little time to educate your client on the norms and customs that we take for granted but that may be entirely alien to your client. One such area where the differences between the practice of American law and legal practice elsewhere are fairly dramatic is in the practice of discovery during litigation.
Indeed, in the United States, the process of discovery has become as contentious as a confrontation at trial. In fact, because virtually all cases settle before making it to trial, the discovery process has been more of a battleground in litigation than anywhere else.
Professional legal translators can work hand-in-hand with you to help educate your foreign clients on what to expect in a U.S. lawsuit.
U.S.-Style Discovery: Not Common in the Rest of the World
The type of discovery practice that is common in American litigation practice is virtually unheard of in the rest of the world. Civil law countries in particular do not engage in the type of evidence exchange that is typical of a U.S. lawsuit. In fact, one type of U.S. discovery, the oral deposition, may be considered illegal and subject to criminal sanction in other countries.
In France, for example, discovery of corporate documents is ordered by the court at the request of a party. Yet, the party receiving the request to produce documents may avoid providing the discovery if it advances a legitimate reason not to, which could include “professional secrecy.” The concept of professional secrecy includes but may extend beyond confidential communications from a client to his or her lawyer.
As another example, Germany is a civil law country. It does not have the concept of pretrial discovery in its laws. It is the judge who has the active role in taking evidence. Moreover, in Switzerland, there is no duty to cooperate with the opposing party before trial. Thus, to take a deposition of a Swiss witness, you may need to have it in a neighboring country to avoid violating Swiss law.
How to Prepare Your Foreign Client for U.S.-Style Discovery
Just as you would be confused by the fact that police do not have to read you your Miranda rights if you were arrested in a foreign country, you can understand why your foreign client would be disoriented by the “open-all-your-books” type of discovery process in the U.S.
Rather than meet with immediate resistance, you would be wise to work with your foreign client ahead of time to manage expectations. Make sure that your client is aware of the meaning and scope of discovery in the U.S. Here are some tips based upon the common types of discovery.
• Depositions. Many foreign countries have so-called “blocking statutes,” that impose civil or criminal sanctions for attempting to garner evidence. If, however, you need to take a deposition in a foreign country for your case, Federal Rule of Civil Procedure 28(b) provides that a deposition in a foreign country can be completed (1) pursuant to treaty or convention; (2) based on a letter of request; (3) on notice before a person authorized to administer an oath in the place where the deposition is held; or (4) before a person commissioned by the court.
• Interrogatories. Some countries are not signatories to the Hague Convention on the Taking of Evidence Abroad. In those cases, interrogatories, or letters rogatory, need to be simple and can be compelled by working with the foreign court in the country in which you wish to have a witness complete the interrogatories.
• Document Production. There are several facets to this type of discovery. First you will have to warm your foreign client to the idea that he or she will have to provide internal company documents to the other side. Second, you will need to explain a document retention policy to your client, such that documents are preserved as evidence. Third, you will need to explain how e-discovery works, i.e., that documents in electronic form are treated the same as paper documents.
The process of educating your foreign client on the existence of, and major provisions of U.S.-style discovery can be daunting. An experienced legal translation service, however, can help. Our legal translation services by certified legal translators are uniquely suited to help with preparing a foreign client for the discovery process. Email us today to find out how our translators for lawyers can assist you during deposition prep meeting with your non-English-speaking client.
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