Prepare for Depositions Like an Emperor
The World Is Flat…But That’s Also Why It’s Complicated
Discussions regarding the differences between civil law and common law systems may seem best suited for intellectual pursuit alone, the stuff of bearded legal scholars and dusty old books. At best some attorneys may “fondly” recall their 1L years and the ancient Roman civil law applied in Pierson v. Post as a means of explaining property law. Others perhaps recall the Napoleonic Code and its uninterrupted use in Louisiana as means of remembering the history behind civil law, fodder for cocktail party anecdotes.
At worst, though, attorneys who ignore civil law systems do so at their own peril, particularly when they pertain to foreign depositions and the real-world implications of a nation’s legal tradition. Dialing into a foreign IP address is easier than it’s ever been, but that doesn’t mean a witness’s testimony will be admissible in an American court.
No Joke: Civil Law Is Different From Common Law
The heading may sound comically obvious, but it’s important to check your expertise at the door when you’re conducting a deposition where the witness is located in a foreign country. All of the things you know from experience are now potentially incorrect, so you need to pause for a moment and pay extra attention to the process.
Consider the “known unknowns” and “unknown unknowns” that Donald Rumsfeld made so mockingly famous. Indeed, when conducting a foreign deposition, simple actions like swearing in a witness become fairly complicated. Were you expecting to have your foreign court reporter or notary swear in the witness? Not so fast! You will need a judge for that in a civil law country. That’s not a huge problem to circumvent if you learn this far in advance or if you can work on a solution with opposing counsel, but figuring it out at the last minute or while dealing with an antagonistic opposing counsel could jeopardize a key part of your case.
Countries With Civil Law Systems
There’s an easy rule of thumb for remembering which countries employ full common law: the U.S., U.K., Canada, Australia, and New Zealand are common law. All other countries employ civil law or some combination of Muslim, civil law, and common law. Thankfully the good folks at ChartsBin offer an interactive page, so if you can operate a computer cursor you can check the legal traditions of any country in question. Though this may only serve as the first step in forming an understanding of the next steps for your deposition, it will certainly place you far above anyone thinking that the differences in civil and common law are negligible.
What Options Are Available?
A judge may grant a stipulation on behalf of parties that agree, or you may be able to arrange to utilize a notary at the U.S. Embassy. In the worst case scenario—if you’re dealing with a truly resistant party—perhaps a trip to a nearby country with more amenable laws is in order. Again, all of these options take time to coordinate, so be sure to think about the implications far in advance. True, the differences between the various legal traditions around the world offer opportunities for heady conversation and deep dives into history and philosophy. But when you are trying to coordinate a successful overseas depo while on the clock, you need to make sure it works the first time. Remember Pierson v. Post and don’t be the fox!
