international-law-gavelIt seems that there is an American court that has solved at least one problem of the Middle East. No, it’s not about Egypt. Or Israel. Or the Palestinians. Or Syria. Let’s start small. Let’s start with Jordan.

In a recent case, Sargeant III LLC v. Al Saleh, Fla. 4th DCA, Nos. 4D11–3851, 4D12–760 (May 15, 2013), the Florida Court of Appeals was asked to determine whether the lower court erred by denying the defendants’ request to elicit the testimony of a Jordanian Law expert. The bare-bones facts were that the parties allegedly had entered into two procurement contracts with the United States in a joint venture. The plaintiffs alleged that the defendants defrauded them out of $28.8 million (the plaintiffs’ share of the total profits). The parties stipulated, inter alia, that in accordance with the terms of their joint venture, Jordanian Civil Law applied.

At issue was whether the defendant should have been permitted to raise a specific affirmative defense, notwithstanding the fact that they had failed to raise that defense in their pleadings. The defendants opined that they should be permitted to introduce evidence that Jordanian Law required the plaintiff to provide notice to a Jordanian Ministry that they intended to commence a lawsuit. According to the defense, the plaintiffs failed to satisfy this requirement.

The court denied the defendants’ motion to provide testimony from a Jordanian Law expert regarding the applicability of this affirmative defense. Its decision rested primarily on the fact that the defense was not raised until the middle of the trial and was thus waived.

For our purposes, the issue isn’t whether the court correctly or incorrectly applied the law. Indeed, there is no question but that the lower court correctly refused the defendants’ motion. Quite frankly, it’s surprising that the Florida Court of Appeals didn’t just deny the appeal without an opinion.

My take on this is not so much about the law but rather about the preparation between the International Law expert and the defense. Apparently, prior to going to trial, the two sides entered into a series of stipulations regarding both the applicability and the interpretation of Jordanian Law.  I was not privy to their conversations, nor do I have any doubt that both the expert and the attorneys put in an extraordinary effort in defending this case.

What concerns me is the fact that a case involving $28.8 million in damages didn’t include or perhaps stipulated away a potentially winning affirmative defense. Somewhere along the line there was, as the warden in Cool Hand Luke said, a “failure to communicate.”

I am not an expert in International Law or Jordanian Law, thus I don’t know if this affirmative defense was arcane or routine. Either way, there was a stipulation between the parties prior to the case that affected or perhaps prohibited its use.

Experts provide more than mere testimony. They provide guidance and insights. Experts are not merely witnesses who testify at trial. They’re our partners. And using their services isn’t simply about having them testify in your client’s behalf; it involves every step of the process – from accepting the case, to the pleadings, to discovery, to motions, to trial. A failure to communicate during any stage of that process can be a costly, and perhaps fatal, omission.

By: Ian Heller, Attorney at Law