Bodum USA v. La Cafeti?re seemed to be a routine foreign contract dispute between two manufacturers of French-press coffee makers. The conflict began in 1991, when Bodum Holding acquired the company that had made the Chambord press for almost a half century. Louis-James de Viel Castel, the principal investor and manager of the acquired company, had another business–the British firm Household Articles–which sold a French press called La Cafeti?re. The press closely resembled the Chambord design, and Household wanted to continue selling La Cafeti?re after the merger.
After several rounds of contract revisions, the parties signed an acquisition agreement stipulating that Household would never sell a French-press coffee maker in France, never use the trade name Chambord, or, for four years, distribute through the importers, distributors or agents that it used before the merger. Otherwise, Household could sell the press however it wanted.
Although the contract appeared cut-and-dried, Bodum sued Household’s Illinois-incorporated distributor and subsidiary, also called La Cafeti?re. Bodum argued the contract didn’t allow Household or its subsidiaries to manufacture its press.
On Sept. 2, a unanimous 7th Circuit panel ruled in favor of La Cafeti?re, upholding its right to make the press. As part of the three-opinion ruling, Chief Judge Frank Easterbrook and Judge Richard Posner excoriated the judicial system’s reliance on expert witnesses in foreign law cases.
“I join the majority opinion, and write separately merely to express emphatic support for, and modestly to amplify, the court’s criticism of a common and authorized but unsound judicial practice,” Posner wrote.
The judges’ broad criticism spawned from both litigants’ use of French lawyers and academics to clarify the French laws at issue. Easterbrook suggested judges and attorneys rely more on English-language translations of foreign law and published articles than on paid witnesses. Posner went so far to say he “cannot fathom” why judges prefer paid testimony to published materials.
Some experts say the judges’ heavy criticism of such an entrenched–and arguably necessary–practice is unsettling.
“To try to put down a blanket rule that expert testimony should rarely, if ever, be entertained–it’s not a very good suggestion,” says Raymond Sweigart, a partner at Pillsbury Winthrop Shaw Pittman.
In Posner’s concurrence, the former law professor lamented the disingenuousness and expense of foreign expert witnesses, whether they are practicing attorneys or academics.
“Lawyers who testify to the meaning of foreign law … are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client,” Posner wrote.
Even though many Americans only speak English, he said judges are already legal experts by nature of their jobs. He said they do not need paid witnesses to “spoon feed” information that is already available in well-explained English treatises and articles.
“[O]ur linguistic provincialism does not excuse intellectual provincialism,” Posner wrote.
Michael Rigney, a partner at Kelly Drye, agrees that paid witnesses are often “hired guns.” But it doesn’t make sense to single out foreign law, he says, because that is a struggle in every type of case.
“It’s not a problem that is unique to expert testimony about foreign law,” he says.
Louis Solomon, a partner at Cadwalader, Wickersham & Taft, says it should remind in-house counsel to make sure their trial attorneys seek out true experts in law. Don’t let outside counsel try to turn experts into advocates for their side, he says.
A Middle Ground
The third Bodom opinion came from Judge Diane Wood, who concurred in the decision but took a more measured approach to the issue of expert testimony.
“There is no need … to disparage oral testimony from experts in the foreign law,” Wood wrote. “That kind of testimony has been used by responsible lawyers for years.”
She argued that risks, such as wrongly assuming that foreign law mirrors U.S. law, make expert testimony worthwhile.
“Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another,” Wood wrote.
Sweigart adds that judges are usually good at discounting whatever spin experts give. Besides, Wood mentioned that expert witnesses are often the authors of the leading treatises and scholarly articles in question.
Attorneys need to be mindful of the quality of their expert witnesses, especially in the 7th Circuit, where judges are now likely to be less forgiving on this issue. All in all, the system is moving toward a middle ground between Posner and Wood, Solomon says, with more careful analysis of the specific roles non-U.S. experts play.
“I do not think we’re going to be dispensing altogether with foreign law experts,” he says.