CIVIL LITIGATION IN THE UNITED STATES
American lawyer Jonathan Capp, Esq. provides skillful and dedicated representation for both Plaintiffs and Defendants in US State and Federal Courts. We have recovered millions of dollars in judgements and settlements for their clients.
From the United States call: (760) 231-6498,
From the UK call 0207 101 9399
From Australia call: 02 8069 7228
Litigation in the United Sates
Litigating in the United States presents certain differences from litigation in most European countries such as France.
There are two levels of jurisdiction in the United States.
Firstly, each of the 50 states have their own state courts. State courts handle the bulk of litigation in each state. Each state has its own laws. However in practice state laws are quite similar.
American law is based in large part on the English common law system and thus the laws in each of the 50 states for the most part are not greatly different to one another. Furthermore, attempts are made to harmonize the laws of the states thru model codes which most states adopt.
Secondly, there is a federal jurisdiction in the United States. Federal courts are administered differently from the State courts.
Certain matters such as trademarks and copyright and matters of immigration, customs and patents are reserved to the federal courts since they are regulated by federal law.
Almost all matters relating to commercial disputes, family and probate matters are regulated by state law and thus by the state courts.
Most US citizens therefore litigate matters in state court according to the local state law, unless for example, it is a copyright or trademark matter.
Foreigners however- including British, Australian and French citizens- have the right to litigate almost all matters in federal court as long as the amount in cause exceeds $75,000. Thus non-US citizens, and other foreigners, often find themselves in Federal court as an expiation to the general rule that most matters are litigated in State court.
Federal court is considered to be more formal and stricter than state courts which are often more relaxed. Often matters proceed more quickly in federal court.
For most civil matters, unlike in almost all other countries, the parties have a right to trial by jury. Thus in a contract dispute or a personal injury matter most cases are decided by a civil jury of between 6-12 persons. The jury often fixes the amount of damages awarded.
The role of the judge is to act as an umpire or referee and decide questions of law. Jury trials in the United States can often become theatrical as lawyers try to persuade a jury of non-lawyers.
In general, litigation in the United States is a lot more intense than in the U.K., Australia, France and other European countries. Lawyers often take multiple witness depositions, and hire expensive expert witnesses to advance their case.
The amounts awarded for damages also can greatly exceed the compensation awarded by courts in other countries.
Another difference is that attorneys are free to negotiate fee agreements with clients. Often cases are taken on a percentage of recovery.
Under the Anglo-Saxon common law system a court case is seen as a battle between the opposing parties where the judge serves as the umpire. The decision in most civil cases is rendered by a lay jury, drawn at random from the community and which ranges from 6-12 members depending on the state where the trial takes place.
Attorneys engage in what is called the ‘discovery’ process where they demand exchange of documents, send out and respond to written interrogatories and take oral depositions of witnesses.
The compensation awarded by US court is often much higher than in Europe and elsewhere. This is largely because the amount of compensation is fixed by the jury and not by a more conservative judge.
Also rights on appeal are much more limited in the US. Whereas in European countries, such as France, an appeal serves as a full rehearing of the case, in the US appeal courts can only normally hear questions or law and not of fact.
Once the jury has made a factual determination this almost always binds the appellate judges. American judges are also bound by the strict rule of precedent and must follow the legal precedents as laid down by courts superior to them in the hierarchy.
State and Appellate trial courts all are subject to the legal precedents rendered by the appellate courts.
At the top of the hierarchy is the United States court of appeals in Washington D.C. which has the final say on all federal and constitutional issues.
The personal jurisdiction of US courts- can I file a lawsuit or be sued in the United States?
This question is frequently posed to us.
Often foreign litigants wish to sue a party in the United States. There are many reasons for this preference. Many people correctly believe that damages awarded in US courts are higher than in Europe or Australia. This is often the case.
Furthermore, punitive or exemplary damages are often more readily available in US courts. In the event of fraud or bad motive by the defendant the amount in damages can be doubled or tripled by the jury or judge to punish the wrongdoer.
Frequently potential plaintiffs wish to hire an American attorney to pursue a case on a contingency fee. This is not always possible in their home country where contingency fee arrangements are not available.
American courts are aware that overseas plaintiffs often prefer to bring a lawsuit in the United States. This can be considered to be ‘forum shopping’, that is a litigant is shopping around for the most advantageous place to sue.
In the circumstances American courts have imposed rules on who can sue in their courts.
The analysis and application of these rules is often complex and can depend on the state where the party wants to sue. It can also depend on whether a party wants to sue in state or federal court. On this point, one should remember that most foreign litigants who are claiming more than $75,000 can elect to sue on Federal court or even be forced to sue on federal court by the American defendant.
Basically the subject of the lawsuit must be reasonably related to the American forum court and furthermore the American court must be the most reasonable forum. That is the witnesses should normally be found in the US.
For the case of an automobile accident or a medical malpractice case the application of this rule is quite easy. The place where the accident or the medical fault occurred is almost always the appropriate forum. This is where the injury occurred and this is where the witnesses are normally found.
Contrast this with a contractual dispute where a European enters into a contract with an American company, based in the United States, over the internet.
If there is a jurisdiction or choice of law clause in the contract, then the matter is simple. If the parties have elected for California, New York, or French or English law and courts to apply then that is the end of it. Conflict of law clauses and court venue clauses (specifying a certain court in a certain place to hear any dispute) are almost always upheld by American courts.
Furthermore, contractual arbitration clauses are almost always upheld by American courts. If the parties elect to arbitrate a dispute, as opposed to going to court, then this election will be enforced by an American court.
In a case such as a contractual dispute where potential two countries could hear the case, then often it is the party who files first who has the advantage. As long as the dispute is reasonably related to the place where the lawsuit is filed, such as one of the parties resides or does business there, then potentially the US court has jurisdiction.
The American court can however decline jurisdiction under the doctrine of ‘forum non conveniens’, that is if the foreign court is the more convenient venue. This would be the case if the bulk of the witnesses were overseas.
For example if most of the witnesses and evidence relating to a contractual dispute where in France as opposed to California then a Californian judge could send the case to France to be decided.
In order for a foreign defendant to be sued in an American court the overseas party must have at least ‘minimum contacts’ to the location in the US where they are being sued. This often means that they must have at least resided or regularly done business in the United States, and in fact the state where they are sued. Once again the doctrine of ‘forum non conveniens’ applies.
If an overseas litigant is served with an American lawsuit, then they should immediately contact a qualified lawyer for a full analysis. The best tactic may be to contest the jurisdiction of the American court and under certain circumstances even do nothing so as not submit to the US jurisdiction.
There are lots of permutations to this question of the jurisdiction of the court. As such an in depth factual analysis is required.
If you have been sued or are considering suing in the US do not hesitate to contact us for a consultation.
Litigation strategies- should I file a lawsuit in the US or file the lawsuit in my own country.
Assuming that we are in a situation where arguably both the US court and the court in the home country, such as France, the U.K, Australia, etc.., have jurisdiction, then the question remains; where should I sue?
As explained already, often the US is a more favorable venue as the potential damage award is higher. However, there are always logistical difficulties in conducting litigation outside of your own country.
Firstly, the opposing party may perceive an advantage since they are ‘playing at home’. This perception can be exaggerated in our opinion. A greater logistical problem is that the overseas litigant will almost certainly be required to attend any trial in court. This will involve traveling the United States.
Furthermore, it is probable that the overseas party will be required to travel to the US for an oral witness deposition, unless this can be conducted via video-link. In a personal injury case the foreign injured person will also be required to travel to the United States for a medical exam.
Thus for any litigation it is likely that the party will need to travel to the United States at least twice.
Under certain circumstances, especially in collection cases, a better strategy may be to file a lawsuit in the home country, serve the defendant in the US and then wait and see if they contest the overseas lawsuit.
If the US party has been properly served with the foreign lawsuit and they ignore it then the foreign plaintiff can obtain a default judgement.
As explained at this link, this default judgment can most likely be enforced in a separate proceeding in the United States.
Thus the American debtor may pay a heavy price for ignoring the foreign lawsuit.
Basically, the question of which strategy to adopt in an international dispute is complex and requires the analysis of an attorney experienced on this field.