Avoiding Common Errors with Foreign Law Expert Testimony

By: Adv. Eli Shimony

Foreign law questions tend to surface at the most sensitive points in a dispute. A contract signed abroad, assets held in another country, or heirs living outside Israel can all trigger the need to prove what foreign law actually says. Israeli courts usually will not accept counsel’s oral description of foreign law as evidence. They expect structured, reliable expert testimony that explains the foreign legal system and applies it to the case.

In our experience as a full-service firm in Israel, the quality of that testimony can tilt the entire case. Foreign law that is poorly presented, insufficiently sourced, or over-argumentative often gets little weight, even if the expert is highly qualified. In this article, we explain how working with an Israeli law expert witness and a lawyer in Israel who understands the court’s expectations can help avoid common errors and build a stronger cross-border strategy.

Strengthening Cross-Border Cases with the Right Expertise

Foreign law issues arise whenever an Israeli court must decide a dispute that has a foreign element. Typical triggers include choice-of-law clauses, international commercial contracts, overseas real estate, foreign companies, or estates involving property and heirs in different jurisdictions. Once foreign law is relevant, the court expects it to be proved as a matter of law with expert testimony, not as a factual narrative from one of the parties.

An Israeli law expert witness has a distinct function. The expert is not there to recount events, like a fact witness, and not to advocate like the party’s lawyer. The expert’s job is to explain what the foreign law is, how it works, which sources are authoritative, and how a court in that foreign country is likely to approach the issues in dispute.

A seasoned lawyer in Israel who regularly appears in local courts and arbitration plays a coordinating role. We help define the exact legal questions, select the right expert, and ensure that the opinion fits Israeli procedural and evidentiary expectations. When foreign law is treated with the same rigor as any other legal argument, the court is better equipped to accept and rely on it.

Understanding How Israeli Courts Treat Foreign Law

Israeli courts generally treat foreign law as law that must be proved, not as a fact that can be recounted informally. In many cases, if no expert evidence is provided, courts may apply a presumption that foreign law is similar to Israeli law. That presumption can be risky, especially where the foreign system differs significantly, such as in inheritance rules, real estate registration, or corporate law.

Judges typically look for foreign law opinions that are:

1. Clear about the legal system and sources involved.

2. Structured around the specific questions defined by the court or the parties.

3. Written in a way that a judge unfamiliar with that system can follow.

They often expect a logical format: background on the foreign legal system, identification of the relevant statutes and case law, discussion of any interpretive debates, and then application to the facts of the case before the court.

Common judicial criticisms of foreign law testimony include over-advocacy that makes the expert appear like another lawyer for one side, opinions that ignore conflicting authorities, and opinions that cite sources without explaining their status in the foreign jurisdiction. Courts also react negatively when experts fail to explain the hierarchy of norms, for example, how statutes, regulations, court precedents, and academic commentary rank and interact.

Choosing and Preparing the Right Foreign Law Expert

Selecting the right foreign law expert is not just a matter of finding a lawyer admitted abroad. Key criteria usually include:

1. Professional qualifications in the relevant foreign jurisdiction.

2. A mix of academic and practical experience in the specific area of law.

3. Strong language skills in both the foreign language and English or Hebrew.

4. Prior experience giving evidence or writing expert opinions.

5. Independence from the parties and their affiliates.

An expert who understands Israeli procedure, including affidavit requirements, cross-examination, and duties to the court, is easier to work with and more persuasive. As local counsel, we often spend significant time explaining what Israeli judges expect and how hearings are typically conducted.

Preparation is as important as selection. A lawyer in Israel should:

1. Define precisely what questions the expert must answer.

2. Provide the expert with all relevant pleadings, contracts, and background materials.

3. Agree in advance on the research methodology and scope of work.

4. Clarify that the expert’s duty is to the court, not to the party that engaged them.

At the same time, over-coaching is dangerous. If an expert appears to have been directed to reach a specific conclusion, their credibility can suffer, and the court may discount the opinion.

Drafting Persuasive and Reliable Expert Opinions

A well-drafted foreign law opinion guides the judge step by step. A clear structure often includes:

1. A short introduction to the foreign legal system and the expert’s credentials.

2. A statement of the issues the opinion addresses.

3. A description of the primary legal sources and their hierarchy.

4. A detailed explanation of the relevant rules and doctrines.

5. Application of those rules to the facts as presented by the parties.

Transparency is key. The expert should explain which databases and materials were consulted, why certain authorities were selected, and how conflicting case law or commentary was weighed. If there is a genuine split of authority abroad, the opinion should acknowledge that, rather than presenting one side as if it were uncontested.

Frequent drafting errors include:

1. Conclusory statements such as “under foreign law the contract is void” without citing any statute or case.

2. Importing Israeli concepts in a way that distorts the foreign system, for example, using Israeli contract law terminology for a civil law jurisdiction with different concepts.

3. Failing to explain technical legal terms, court structures, and procedural references that are obvious to local practitioners but not to an Israeli judge.

When the opinion reads as a careful, neutral guide rather than a brief for one side, it is more likely to be trusted and adopted.

Managing Cross-Examination, Challenges, and Ethical Risks

Opposing counsel will often test a foreign law expert’s limits. They may challenge the expert on:

1. Bias, such as longstanding ties to one party.

2. Lack of specific experience in the relevant field of law.

3. Inconsistency with the expert’s publications or prior opinions.

4. Attempts to decide disputed facts instead of sticking to the legal analysis.

Preparing for cross-examination should focus on reminding the expert of their role, walking through the key authorities, and rehearsing clear explanations of complex concepts. The goal is not to script answers, but to ensure the expert is comfortable explaining their reasoning under pressure.

Ethical issues also arise. Both the expert and the instructing lawyer in Israel must be alert to conflicts of interest, such as prior work for a party that should be disclosed. Confidentiality obligations to clients and to third parties whose documents are used must be respected. Above all, the expert’s independence must be preserved, because once the court senses that the opinion has been shaped for tactical advantage, its value drops sharply.

Building a Stronger Strategy for Foreign Law Issues

The strongest cross-border strategies treat foreign law as a core component of the case from the outset, not a late add-on. Early analysis helps frame choice-of-law arguments, interpret jurisdiction clauses in contracts, and plan what evidence will be needed from abroad. It can also inform settlement discussions, since the parties will have a clearer picture of the legal risks under both Israeli and foreign law.

A full-service Israeli firm like Eli Shimony Law Office is often involved in coordinating between local counsel abroad, foreign experts, and proceedings in Israel. By aligning the foreign law testimony with the broader litigation or arbitration strategy, we help ensure that technical legal questions from another jurisdiction are presented to the Israeli court in a coherent, credible way.

For parties who anticipate foreign law questions in their disputes, the practical steps are straightforward: recognize early when foreign law may apply, involve a lawyer in Israel who is experienced with foreign law evidence, and invest the time to select and support the right expert. Done correctly, foreign law testimony becomes a strength in your case, rather than a source of uncertainty or procedural setbacks.

Protect Your Business Interests With Local Legal Experience

If you are navigating contracts, disputes, or new opportunities in Israel, our team can provide clear, practical guidance tailored to your goals. Work directly with a seasoned lawyer in Israel at Eli Shimony – Law Office to address risks before they become costly problems. We will review your situation, explain your options in straightforward terms, and build a focused legal strategy. To schedule a consultation and discuss your next steps, please contact us.

Eli Shimony – Israeli law firm represents clients on all legal matters in Israel. For any questions, please contact us, and we will be happy to assist.
By email: [email protected], By phone: +972-52-2769773, +972-3-5507155.
The above is only general information and does not replace legal advice, which is usually necessary before taking legal proceedings.