Using Judicial Notice to Determine Foreign Law

May 3, 2012

For a native Texan like me, folks don’t have to live outside the 50 states to be considered foreigners.  After all, just because we share a national government doesn’t mean that Texans have anything more in common with New Yorkers than we do with New Zealanders.  The Texas Rules of Evidence recognize this, at least with regard to the laws of other places, and establish judicial notice as the vehicle to determine the substance of applicable law anytime you step across the Texas border.

While they are both considered “foreign,” there are only two essential differences between the process of taking judicial notice of the laws of Georgia the country and Georgia the state.  According to Rule 203 of the Texas Rules of Evidence, applying foreign country law may require (1) translations from foreign text into English text, and (2) reliance on informal evidence, such as affidavits and treatises, to “prove” what the foreign law is.  Otherwise, both require some sort of notice to the other side and an opportunity to be heard, and in both situations, it is a decision for the judge, not the jury, and reviewable as an issue of law. 

Foreign State Law:  To request that judicial notice be taken of the laws of another state, TRE 202 basically requires a party to do two things:  (1) furnish the court sufficient information to make a determination of what the law is, and (2) notify the other side that judicial notice is being requested so that they may invoke their right to be heard on the propriety of taking judicial notice.  Normally, it is sufficient to provide copies of relevant statutes and case law in order to satisfy the first step.  Adequate notice to the other side is a matter to be determined by the court, and the rule contemplates that no notice may sometimes suffice, provided that if no advance notice is given, the opposing party be given an opportunity to be heard on the matter after notice has been taken.

Foreign Country Law:  Requesting judicial notice of foreign law is also a relatively simple procedure.  At least 30 days prior to trial, notice of a party’s desire for the court to take judicial notice of a foreign law must be given, along with copies of all materials and sources it intends to use as proof of the foreign law.  If translated materials and sources are used, the original foreign-language text must also be provided.  Proof of foreign law may be informal, including materials which are in otherwise inadmissible form, such as affidavits and treatises.  A judge may also refer to sources which are not provided by either side, provided, however, that both sides are given notice of the use of outside sources and an opportunity to be heard on the matter.

There is one important reason why attorneys should know how to invoke the court’s authority to take judicial notice of non-Texas law:  If it isn’t done correctly, the appellate courts will presume that the law of the other jurisdiction is the same as Texas law.  UTICA v. Mutual Ins. Co. v. Bennett, 492 S.W.2d 659 (Tex. Civ. App. — Houston [1st Dist.] 1973) (failure to make proper request); Pittsburg Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App. — Corpus Christi 1999) (failure to provide adequate proof of the other law).    And the easiest way to seek judicial notice of non-Texas law is through a summary judgment proceeding.  By doing so, the issue may be decided efficiently and summarily while ensuring that the notice requirements are satisfied.  (Practice tip:  For foreign law, to allay concerns that a summary judgment hearing is considered a “trial” for purposes of TRE 203, provide 30 days’ notice of the hearing instead of 21, and add 15 more days if using a translation of foreign documents, in order to comply with TRE 1009).

When opposing a summary judgment of this type, take care not to assume that the traditional summary judgment standards will apply, and avoid the temptation to try to raise a fact issue to defeat the motion.  Judicial notice of non-Texas law has been recognized as a “hybrid” rule, in that it requires the presentation of evidence, yet is a legal determination.  When there is disagreement over the content of the law, based on evidence presented from various sources, it will not be treated as a fact issue which will preclude summary judgment.  Instead, the proper inquiry is whether the trial court, in reviewing the conflicting evidence about the foreign law, reached a proper legal conclusion as to its content.  CPS International, Inc. v  Dresser Industries, Inc., 911 S.W.2d 18 (Tex. App. — El Paso, 1995). 

Whether from India or Indiana, our evidentiary and procedural rules create a fairly straight-forward mechanism to determine what the law is anytime we need to apply the law of another jurisdiction, such as when parties to a contract agree that the law of another state will govern a particular dispute.  Of course, this begs the question of why anyone would ever do this.  After all, if the law’s good enough for Texas, shouldn’t it be good enough for the rest of the world?

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


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