Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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In this section, we consider various aspects that are pertinent to trials in which a jury will be the finder of fact. Note that the Foreign Sovereign Immunity Act provides that there is no right to a jury trial in an action against a foreign state. See 28 U.S.C.A. § 1330. The non-jury provision of the FSIA provision cannot be waived by the foreign state. Lehman Bros. Commercial Corp. v. Minmetals Intern. Non-Ferrous Metals Trading Co., 169 F. Supp. 2d 186, 191 (S.D.N.Y. 2001) (nonjury provision is mandatory and cannot be waived).

  1. The Use of Jury Consultants In International Disputes.
    1. If the size and amounts in controversy justify the expense, jury consultants can be of considerable assistance in preparing a case for trial, to provide insight into the population from which the jury will be drawn, to develop profiles of the members of the jury pool, in organizing mock juries to test themes to be developed at trial and to prepare and test questions for voir dire as well as in the selection of jurors. Their utility may be even greater in cases involving foreign litigants, in which counsel will need to gauge the possible effect of bias and prejudice and will seek to minimize any “home court advantage.”
      1. Practice Tip: It may be useful to show mock jurors the videotape deposition of key witnesses to assess a juror’s perception of the foreign witnesses’ credibility taking into account possible juror bias and prejudice. This may also assist counsel in determining whether, or to what extent, a foreign witness should testify in English or through an interpreter.
  2. Voir Dire Questions And Challenges to Potential Jurors
    1. The purpose of voir dire examination is (1) to determine whether there are any prospective jurors who should be removed for cause, and (2) give counsel and the parties sufficient information to make peremptory challenges.
    2. Under FRCP 47 Federal courts have wide discretion as to the method of examination of jurors allowing the court to conduct the examination of prospective jurors, and permitting the parties or their attorneys to supplement it as the trial judge deems proper.
    3. In federal courts the judge conducts most or all of the voir dire. Counsel may be allowed to submit specific questions to be asked by the court. Some courts allow counsel to address supplemental questions directly to the prospective jurors after the court has done most of the questioning.
    4. Most federal judges confine questioning to general questions. Some courts direct particular questions to the first twelve to eighteen prospective jurors in civil cases, and the first twenty-eight jurors in criminal cases, asking the remaining venire persons to pay attention to the questions that are asked in the event that they may be called upon.
    5. While the trial judge is vested with wide discretion in conducting voir dire, the examination should be sufficiently extensive to permit court and counsel to determine if a cause for challenge exists. Ordinarily, the failure to ask a particular question will not necessarily be considered a denial of the opportunity to exercise the right of peremptory challenge. But undue restriction of the scope of voir dire may be reversible error.
    6. Where inquiry into racial or ethnic bias is necessary or prudent, a trial court has discretion in formulating the manner of questioning. Importantly, where counsel perceives the need for questioning on such subjects, a request should be made since a court may not be required to initiate such an inquiry.
    7. Language and cultural differences play a great role in determining how people respond to one another. The jurors may subscribe to stereotypes about your client’s or adversary’s country.
    8. If a key witness at trial has an accent, it may be useful to ask potential jurors how they feel about that. In conducting voir dire counsel should be attuned to jurors hearing problems which might make more difficult for jurors to hear and understand witnesses with accents.
    9. If there are important cultural differences between the client’s native country and this one, counsel may want to ask potential jurors how they feel about them or whether discomfort with such differences might cause them to be skeptical of the foreign witness.
    10. Some areas counsel may want to explore with prospective jurors might include:
      1. Questions about travel and foreign contacts, particularly with the country involved;
      2. knowledge of languages other than English, and the language in question in particular,
      3. attitudes about bilingual education,
      4. the feelings about testimony being translated and any impatience or difficulty speaking to those who do not speak English well or who speak with an accent.
    11. In a criminal case, if the criminal defendant so requests, the court may be constitutionally required to voir dire potential jurors concerning ethnic bias. See Ristaiano v. Ross, 424 U.S. 589 (1976). But in U.S. v. Montenegro, 231 F.3d 389 (7th Cir. 2000) the Seventh Circuit held that the district court was not required during voir dire to inquire sua sponte into whether potential jurors were biased toward non-citizens.
    12. Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994) involved the peremptory challenges of Spanish-speaking jurors. Justice Alito, then a member of the Third Circuit Court of Appeals, wrote the opinion of the Third Circuit holding that peremptory challenges by the government based on the ability to speak or understand a particular foreign language, such as Spanish, were not necessarily a proxy for race or ethnicity and challenges on that ground would not be subject to “heightened scrutiny” standard of review applicable where the classification was based on race or ethnicity. See also U.S. v. Munoz, 15 F.3d 395 (5th Cir.), cert. denied, 511 U. S. 1134 (1994) (holding that peremptory challenges based on foreign language ability were not a proxy for ethnic discrimination).
  3. Selected Jury Instructions and Charges that Arise in Litigations in the U.S. Courts
    1. Court Instructions on the Application of Foreign Law
      1. Fed. R. Civ. P. 44.1 governs the application and determination of foreign law in federal court proceedings. The rules and procedures governing the application of foreign law are considered separately in Guide Chapters 7 and 8. For purposes of this section, we note only that in a jury case involving the application of foreign law, the court, of course, will have to instruct the jury regarding the foreign law.
      2. In drafting the proposed jury charge, counsel should make every effort to minimize the use of foreign terms and if the foreign law is consistent with that of the forum, counsel should note that and follow the jurisdiction’s pattern jury instructions as closely as possible. conversely, counsel should object to any proposed jury charge regarding foreign law that overuses foreign terms and may therefore be confusing to the jury.
      3. To assure that the charge itself does not lead to unnecessary confusion, it is advisable to test the jury charge before a mock jury with a jury consultant in preparing the case for trial.
    2. Court Instruction to the Jury on the Use of Official Translation
      1. In international cases in the U.S. courts, there may be witnesses who testify in a foreign language and who require the use of interpreters to translate questions and testimony to and from English. Jurors may sometimes speak or understand the language spoken by the witness. They may be tempted to rely on or translate for themselves the witness’s original answers in the foreign language. Courts have held that it is misconduct for a juror to retranslate for other jurors testimony that has been translated by the court-appointed interpreter. See, e.g., People v. Cabrera, 230 Cal. App.3d 300, 303 (2d Dist. 1991). In cases involving the use of interpreters at trial, it may be necessary to instruct the jury that only the translation provided by the interpreter (and that is transcribed by the court reporter) counts as evidence.
      2. Sample Jury Instruction: “Where an interpreter or translator has been used, you are to consider only that evidence provided through the official court interpreter or translator. Although some of you may know the [foreign language], it is important that all jurors consider the same evidence. therefore, you must base your decision on the evidence presented in English. You must ignore any different meaning of the non-English words.”
      3. Another formulation offered under New Jersey law provides the following notice or instruction to jurors: “(A) the court interpreter is an expert witness [referring to New Jersey law]. Therefore, you should treat the court interpretation rendered of the witness testimony as if the witness had spoken English and no court interpreter were present.(B) Do not give any weight to the fact that testimony is given in a language other than English. Do not allow the witness’ inability to speak English to affect your view of the witness’ credibility. (C) If any of you understand the language of the witness, disregard completely what the witness says in the other language. Consider as evidence only [emphasis in original] what is provided by the court interpreter in English. (D) Do not attribute any prejudice to the fact that the defendant requires a court interpreter. This court seeks a fair trial of everyone regardless of the language they may speak. We will not permit bias against persons because they do not speak English.”
      4. Such instructions may be given whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case or when the person requiring translation testifies, or both, at the court’s discretion. The instruction may also be modified and given again at the end of the case, with all other instructions.
    3. Court Instruction To The Jury To Follow The Law Without Bias And To Ignore The Nationality Or Place Of Residence Of The Parties Or The Witness Where Irrelevant To The Jury’s Decision.
      1. In cases involving foreign parties, the U.S. party may appear to have a “home court” advantage. In order to reduce this potential bias, the foreign party may seek an instruction reminding the jury that all parties have equal standing before the law and that jurors should not be considering the parties’ nationality as a basis for decisionmaking.
      2. Sample Jury Instruction: “You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit jurors to be governed by prejudice, sympathy or public opinion. … I instruct you that as regards the standing of the parties before this Court of law, this case should be considered and decided by you as an action between the parties of equal standing before the law. It would be improper for you to consider any personal feelings you may have about the parties’ [or witness’s] nationality or place of residence. The parties in this case are entitled to a trial free of prejudice. All parties stand equal before the law and are to be dealt with as equals in a court of justice.”
    4. Court Instruction to the Jury Regarding Plaintiff’s Right Not to Sue a Potential Defendant or Wrongdoer.
      1. In international litigations, plaintiffs are often put in the position of suing some but not all of the alleged wrongdoers. The plaintiff’s reasons for not joining alleged wrongdoer may be tactical, jurisdictional, or both.
      2. But at trial, jurors may be tempted to draw unwarranted inferences from plaintiff’s failure to join a wrongdoer who is not otherwise a necessary party in the legal sense. To counteract jury skepticism, it may be necessary to have the court instruct the jury that plaintiff need not sue every alleged wrongdoer or co-conspirator.
      3. Sample Jury Instruction: The law imposes no requirement that a plaintiff name each and every potential party against whom it has a potential tort claim such as fraud. A plaintiff is free to sue any one or more as it sees fit, and may try to recover the full amount of damages from such party or parties that it sues. [X] is not necessary party to this action. Plaintiff may seek to recover the full amount of damages from the defendant [Y] in this case.
    5. Special Verdicts and Interrogatories.
      1. The Federal Rules of Civil Procedure provide for the submission of special verdict forms calling for findings on issues of fact (Fed. R. Civ. P. 49(a)) or a general verdict form accompanied by interrogatories (Fed. R. Civ. P. 49(b)).
      2. While there are no hard and fast rules on when to use these procedures, they may be of assistance in international disputes, especially those involving the application of foreign law, because they provide a structure for jury deliberation and decision-making. The special verdicts and interrogatories may also serve to reduce the effect of bias or “home court advantage”.

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