Practice, procedural rules, and substantive law must be reexamined at their basic level when submitting a sworn statement "under pain and penalty of perjury" in a foreign tribunal.
"Private international law" in itself does not exist in the form of black letter law. Rather, practitioners need to work through provisions, ethics, thinking and practice to make the square peg of a Polish law situation fit into the round hole of a New York Affidavit. Recent experience gave me this stark reminder as we walked through this in preparing affidavits summarizing Polish litigation for purposes of a U.S. Court filing.
At the outset, Polish procedure and litigation do not usually provide for affidavits when filing a claim (except in arbitration cases and other limited circumstances). Rather, the motion will include reference to statements to be made on oral examination of a witness during proceedings. Further, signing "under pain and penalty of perjury", where the affiant can be convicted of perjury, has a jarring effect on the affiant.
Another initial point to consider is that U.S. litigation and documentation seems to be much more "front loaded" than Polish litigation. When preparing an affidavit explaining the existence, nature, and status of Polish proceedings, the U.S. side will ask every difficult question one can imagine, so that the final work product contains not only an explanation of the case, but the affidavit should also contain answers and explanations to each and every question or issue surrounding the case. The goal of drafting in such a way is to give the U.S. ammunition and a basis, during hearings or later arguments, to answer questions that the Judge will likely have or respond to arguments that opposing counsel will likely make.
Once that initial reluctance is overcome, preparing an affidavit for a U.S. court becomes a fascinating and frustrating exercise, examining substantive and procedural law, explaining practice, and arguing about how certain terms should be translated.
When examining substantive law, the likelihood is that the law itself will be similar, but the penalty or treatment is different or needs to be confirmed. For example, certain acts may be wrong under both jurisdictions, while one jurisdiction may provide for monetary relief/damages, and the other may require specific performance. Thinking through these differences and explaining them are necessary because a Judge examining a motion has his/her own predisposition, based on the law that they know. So, if the Polish substantive law, or the treatment under that law, is different, it's necessary to explain that difference, to hopefully guide a Judge away from following his/her instincts, based on known practice in that country.
Erie and procedural v. substantive law examination
Before examining procedural issues, let's not forget about the toothache of an issue I had from first year law school Civil Procedure, the Erie doctrine, which in broad brush provides that, when a [New York] tribunal examines a question under [Polish] law, the New York tribunal would apply its own rules of procedure, but apply the substantive law of Poland. The current toothache of legal questions is, aside from the obvious (rules of civil procedure in each country), what constitutes substantive law and what constitutes procedural law: are statute of limitations (prescription) issues procedural or substantive? What is the due authority of a company? When addressing an issue in an affidavit, once again, it's necessary to examine which jurisdiction treats what issues as procedural and what issues are substantive.
The minutiae of procedural details should come as no surprise to practitioners, and getting these details into an affidavit would be easy but for overriding procedural issues:
- U.S. proceedings and filings are public record, while in Poland access to court filings are restricted
- criminal proceedings in Poland are private files and disclosure of certain elements of criminal proceedings (including the disclosure to a U.S. Court where they become public record) can be, to say the least, problematic.
Things we take for granted here can be a surprise elsewhere and vice versa when dealing with details, and then these details have to be worked into a well-formed affidavit. A few thoughts:
- The U.S. system is pre-disposed to a jury eventually considering a case, while jury trials do not exist here and are not part of the lexicon or DNA of Polish litigation;
- That a court case can be pending for 7 years may be unusual but is no great surprise in Poland.
- In Poland, hearings are usually to hear a single witness or address one issue, followed by months' long break, while a U.S. trial is intended to cover all witnesses and issues in a marathon (1 day to weeks' long) set of hearings.
A practice tip for translation of concepts: don't believe the dictionaries or google. When preparing something as important as an affidavit, the concept needs to be correctly translated. Two recent points:
- I disagree with the common translation of the Polish Sąd Okręgowy: the common translation (included on that court's website) is "Regional Court", while for the purposes of submitting to a U.S. Court, I translated it as "District Court". Why? Because the District Court is a federal court of greater authority, similar to that of a Sąd Okręgowy when compared to a Sąd Rejonowy (which I translate as a Regional Court).
- To zaskarzyć a decision is often translated by (myself included) as a "complaint", where when I examined concept to concept in the case at hand, the correct term for U.S. purposes seems to be an "interlocutory appeal".
As you can see, this is a fascinating and frustrating exercise of formulating an argument to a U.S. Judge when explaining a Polish situation, while the Polish situation is based on legal concepts, which differ to greater or lesser degrees, from the U.S. Even though I was familiar with affidavits in my original, meaning American, legal system and even though I've been to Poland for so many years, I still had to go through all the ups and downs to come up with a product that could be accepted in the US, but which got to the merits of the case in Poland without losing any issues that would be important in both of these countries, and so to help our client in the best possible way.
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