Litigation U.S. Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Comparing England and Wales and the U.S. Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
(!) In England the jury has nearly disappeared from civil trials, whereas the right to a jury trial is a constitutional right in the US (!) The role of pre-trial discovery (disclosure in England) is radically different in these two jurisdictions. Whereas discovery in the US is rather extensive, stringent limits have been introduced in England by the Woolf reforms
Class Actions Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
the UK differs from the US in several respects: Opt-in versus opt-out: in the UK, claimants must currently elect to join the action in order to be considered a member of the class and share in any damages recovered. The US operates an opt-out system, whereby all potential claimants are bound unless an affected claimant actively elects not to participate.
In the UK, the outcome of a class action is not determined by a jury but before a judge. Except in very limited circumstances, courts in the UK cannot award punitive damages. In the UK, the general rule is that the loser pays the costs of the case. This acts as a disincentive against frivolous claims because of the risk of paying adverse costs. In the US, the normal costs rule is that each party bears its own legal costs.
Legal reasoning in the US Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Palm Bay International, Inc. v. Marchesi di Barolo S.p.A.
Federal vs. State Courts Key differences Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
State and local courts are established by a state. Federal courts are established under the U.S. Constitution to decide disputes involving the Constitution and laws passed by Congress. The differences between federal and state courts are defined mainly by jurisdiction.
State courts have broad jurisdiction, so the cases individual citizens are most likely to be involved in are usually tried in state courts. The only cases state courts are not allowed to hear are lawsuits against the United States and those involving certain specific federal laws: criminal, antitrust, bankruptcy, patent, copyright, and some maritime cases.
Federal court jurisdiction, by contrast, is limited to the types of cases listed in the Constitution and specifically provided for by Congress. For the most part, federal courts only hear:
Cases in which the United States is a party; Cases involving violations of the U.S. Constitution or federal laws; Cases between citizens of different states if the amount in controversy exceeds $75,000 (under diversity jurisdiction); and Bankruptcy, copyright, patent, and maritime law cases. In some cases, both federal and state courts have jurisdiction. This allows parties to choose whether to go to state court or to federal court.
Most criminal cases involve violations of state law and are tried in state court, but criminal cases involving federal laws can be tried only in federal court.
State Laws and the Federal Constitution Federal courts may hear cases concerning state laws if the issue is whether the state law violates the federal Constitution.
Courts and Caseloads State courts handle by far the larger number of cases, and have more contact with the public than federal courts do. Although the federal courts hear far fewer cases than the state courts, the cases they do hear tend more often to be of national importance.
Cases Filed Annually: State Court: 30,000,0000 cases filed Federal Court: 1,000,000 cases filed Number of judgeships authorized: State Court: Approximately 30,000 judgeships Federal Court: Approximately 1,700 judgeships (From the Federal Judicial Center)
Understanding Litigation in the U.S. Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
The judicial branch is comprised of the United States Supreme Court, 12 appeals courts (each of which hears appeals from a discrete area of the country, known as a circuit) and 94 district courts, each having many judges and some with branches in several cities. The judicial branch also includes certain specialized courts. Unlike state courts, federal courts are courts of limited jurisdiction - they hear only cases involving constitutional law and federal law, as well as cases arising under their diversity jurisdiction.
Diversity jurisdiction Diversity cases are lawsuits based on a state law claim where (1) a person or company residing in one state is suing a person or company residing in another state, or (2) a U.S. person or company is suing a foreign person or company or vice versa. If certain conditions are met, foreign parties sued in state courts for more than $75,000 can often remove that case to a federal court, but only if they do so within 30 days.
The federal courts also have jurisdiction over cases brought by or against foreign governments or certain companies owned directly or indirectly by foreign governments. Such entities have the right to remove cases brought against them in state courts.
Although it is part of the federal system, the United States Supreme Court is also authorized to hear appeals from decisions of the state supreme courts if the appeals are based on the U.S. Constitution or other federal laws. Most appeals to the U.S. Supreme Court are discretionary, meaning that the Court decides which appeals it will accept for consideration. A request to the U.S. Supreme Court to hear an appeal is called a writ of certiorari.
The Court typically hears argument in less than one percent of the requests for appeal made annually. Hence, as a practical matter, almost all appeals are finally decided by one of the 50 state supreme courts or the 12 federal courts of appeal.
While both Congress and the state legislatures pass many statutes (laws) each year, much of the law which governs U.S. litigation is made by judges. This occurs in two ways: First, substantial bodies of state law, such as contracts and torts, are based to a considerable extent on the common law, which is the precedent created by hundreds of thousands of judicial opinions over the last two centuries and, even before that, precedent created under English law.
Second, both the federal and state courts have a very important role in interpreting the statutes that Congress and the state legislatures pass; they decide what the statutes mean in various situations. While U.S. statutes are theoretically just as important as the codes in civil law countries, in practice, the precedent is often more important than the actual language of the statute.
Second, both the federal and state courts have a very important role in interpreting the statutes that Congress and the state legislatures pass; they decide what the statutes mean in various situations. While U.S. statutes are theoretically just as important as the codes in civil law countries, in practice, the precedent is often more important than the actual language of the statute.
The role of the judge Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Because so much of the law is made by judges, and because judges are given a great deal of discretion in handling cases, the personality and attitudes of the particular judge hearing the litigation can have an enormous impact on the course and outcome of the litigation.
The average federal district judge has more than 400 cases each year to contend with. In addition to trials, he or she conducts sentencings, pre-trial conferences, settlement conferences, and hearings on motions, writes orders and opinions, and considers other court matters.
Most litigators believe that juries are far more plaintiff-oriented in some parts of the country than in others. If they have a choice, which they often do, many plaintiffs attorneys will try to bring their lawsuit in a state, city or county where juries are known to favor plaintiffs (referred to as forum-shopping ).
U.S. judges have normally practiced law in some capacity for at least 10 to 15 years before they become judges. Federal judges are appointed by the President for life. State court judges are elected in some states, and are appointed by the state s governor in others.
In the federal system and most state systems, a new lawsuit is randomly assigned to a judge. A lower or trial court judge will typically handle a docket of approximately 400 cases, and sometimes far more. The U.S. Constitution provides that federal judges are nominated by the President and confirmed by the United States Senate. The appointments are for a life term.
Personal jurisdiction Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
There are two kinds of jurisdiction, personal and subject matter. Subject matter jurisdiction simply means whether a court is authorized to hear a particular kind of case. Personal jurisdiction means whether a court is authorized to exercise jurisdiction over the party being sued. Although there are other ways, there are three primary situations in which a court may exercise jurisdiction.
First, for instance, if a company is regularly and continuously doing business in a state (even if it is not registered to do business there), it can usually be sued in that state s courts and the federal courts located there, for a claim which arose anywhere in the world. Doing business may include systematically selling products into a state.
Second, even if a company only engages in asingletransactionoractioninastate,itcan often be sued there if the claim arises out of that particular transaction or action. Third, a foreign manufacturer can often be sued in a state if someone is harmed in the state by a product the manufacturer made somewhere else in the world. This third basis for personal jurisdiction can be satisfied even if the manufacturer never has any direct contact with the state or the United States and does not sell directly into the United States.
Alter Ego In many cases, a plaintiff s attorney will allege in his complaint that the foreign parent and its U.S. subsidiary operate as one entity, so that one should therefore be treated as the alter ego of the other. If this can be proved by the plaintiff, the acts of the U.S. subsidiary can be imputed to the foreign parent corporation for the purpose of evaluating whether the court may exercise personal jurisdiction over the parent.
(!) This alter ego doctrine can also be a way to hold the foreign parent liable in damages for claims against the U.S. subsidiary. U.S. courts are, however, very resistant to alter ego claims by plaintiffs. If the foreign parent can show that its U.S. subsidiary is adequately capitalized and the corporate formalities have been properly observed, U.S. courts normally conclude that there is no personal jurisdiction over the foreign parent corporation (and/or that the parent company is not liable for claims against its subsidiary).
Stages in a typical commercial lawsuit Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Complaint Motion to Dismiss or Answer Discovery Motion for Summary Judgment Trial Appeal
Transfer of Legal Actions Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
The forum non conveniens doctrine provides that, even if a court has jurisdiction over all parties, it can still transfer the case to a jurisdiction where it would be more convenient to hear the case. The court has a great deal of discretion in making this decision. It is supposed to consider many factors, including where most of the witnesses and documents are located. If it finds that most of those factors point to a foreign country, it can dismiss the case in the United States and require the plaintiff to bring the case in that foreign country.
The forum non conveniens doctrine can sometimes also be used to move a case from one state to another. There is a similar procedure by which a federal court can transfer a case to another federal court in the United States. If a defendant wants to have the case transferred it will usually make a motion seeking such a transfer at the beginning of the case.
In federal court, there is also a procedure by which similar cases brought against the same defendants in different federal courts throughout the country can be consolidated in front of a single federal judge.
Removal is the procedure by which certain cases filed in a state court may be transferred to a federal court, if there is a basis for federal jurisdiction.
Over 95% of commercial cases which are not dismissed as a result of pre-trial motions are settled prior to trial. The U.S. litigation system produces so many settlements because of two key components jury trials and discovery.
Jury Trials Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Common law reasoning and institutions Under the United States Constitution and the Constitutions of all states, either party is entitled to demand a trial by jury in most types of lawsuits. The parties can also agree to have the judge try the case without a jury, in what is known as a bench trial.
Parties will sometimes waive their right to a trial by jury in order to have the trial sooner, or where they are concerned about how a lay jury will react to their evidence and arguments. A jury usually consists of six to 12 average citizens, selected at random from lists of registered voters or those holding driver s licenses. They usually have no experience in the particular industry involved in the dispute, and have varying levels of education; many may have no experience in law or business.
In a jury trial, the judge does not influence the jury about how to vote, though he or she does control what evidence the jury will hear according to the official rules of evidence and instructs them on the law that applies to the case. While the judge decides what law applies to a case and instructs the jury accordingly, the jury is entitled to decide all of the factual issues in the case.
The jury also decides the amount of damages to award, although a large number of big jury verdicts are later set aside or reduced substantially by the trial judge or on appeal. The fact that average citizens are deciding issues of liability and damages in complex commercial cases, which often have potentially high damages, gives the process a certain amount of unpredictability. This unpredictability promotes settlements.
Discovery Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
The other key factor promoting settlement is the significant amount of discovery available under the United States litigation system. Discovery is the process by which each side investigates (discovers) what evidence (information) the other side and non-party witnesses have about the issues in the lawsuit. The substantial amount of discovery available is the biggest difference between the U.S. litigation system and practically every other legal system in the world.
Depositions Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
In a deposition, a lawyer for one party asks questions of the witness, typically in a conference room at the lawyer s offices, with no judicial officer present. The testimony is given under oath and a stenographer records everything the witness says. Often the proceeding will be videotaped as well. The witness is usually represented by a lawyer, and is normally required to answer almost all of the questions asked. The issue of whether particular answers or documents can be admitted into evidence at trial is determined later, when the trial takes place.
In addition to document requests and depositions, each party is also allowed to require the other party to answer written questions called interrogatories. Discovery is the central part of any litigation in the United States. Discovery can consume anywhere from six months to two years or more. During that period, the parties will also often engage in motion practice.
Discovery leads to settlements. Litigants in the United States settle for a variety of reasons, including, among many others, their understanding of the relative risks of winning or losing (based on what they have learned through the discovery process), the risk of a jury trial, the cost of continuing, and the desire to end the disruption of normal business operations which litigation can create.
(!) In practice as opposed to theory, the system is designed to produce a settlement by the parties, not a resolution by a judge or jury.
Motions to Dismiss and Motions for Summary Judgment Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Stages in a Motion: Motion Response Reply Oral Argument (at discretion of the Court) Decision
A motion is a formal request to the court to take or order a specific action. A motion is typically supported by a memorandum containing arguments about the applicable legal points, and usually by sworn affidavits from the parties or witnesses with respect to the pertinent facts. The party opposing the motion will submit its own legal memorandum and affidavits; the moving party will then reply to the opponent s arguments. This process typically takes two to three months or more.
Sometimes the judge will then require, or allow, the attorneys to argue the motion in person before him or her. The court will then decide the motion and issue a written decision, usually within one to four months after the argument, although complicated motions in certain busy courts can take much longer.
Sometimes a defendant believes that even if the facts stated in a plaintiff s complaint are true, the defendant s actions did not violate the law. In that case, the defendant can ask the court to dismiss the complaint instead of having the defendant file a formal answer to it. A motion to dismiss is typically made at the beginning of the case because, if it is granted, the parties then do not need to go through the discovery process.
The defendant can also make a motion for summary judgment seeking dismissal of all or part of the complaint. In a motion to dismiss, the court only looks at the complaint to see whether it states a legal claim; in a motion for summary judgment, the court will also consider any other evidence presented by the parties. The motion for summary judgment is usually made after some or all discovery is complete, although it can be made much earlier. There are also many other kinds of motions.
If the motion to dismiss or for summary judgment is successful as to all claims in the complaint, the case is over at the lower court level. There will be no trial, although the plaintiff can still appeal.
Injunctions Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
A preliminary injunction is a court order which, in the usual case, prohibits a defendant from taking certain action during the time the lawsuit is pending. If a preliminary injunction is granted, it can be a powerful weapon for a plaintiff and will often effectively end the lawsuit. Because of its power, it is not easy to obtain a preliminary injunction, and courts have a great deal of discretion to deny a request for one.
Typically, a plaintiff is required to show that (1) it is very likely to win the case and (2) without the injunction it will suffer irreparable harm during the time it will take to finish the lawsuit, which harm cannot be compensated by awarding money damages at the end of the suit. This is often a difficult burden to meet; it can also be quite expensive because of the need to present persuasive evidence in a short period of time.
Appeals Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Whichever side loses a case, either by motion or after trial, has the right to take an appeal. In the state legal systems, there are often two levels of appeal possible: (1) by right to an intermediate appeals court, then (2) at the appellate court s discretion, to the state supreme court.
In the federal system, appeals go first to one of the 12 circuits courts of appeals. If the loser decides to appeal that decision, it would go to the US Supreme Court if that court accepts the appeal. Most federal appeals are finally decided by the Federal Circuit Courts of Appeal.
An appeal in the state or federal system can take from 6 to 18 months to resolve, and sometimes longer. Appeals are decided primarily upon the parties submission of written memoranda, referred to as briefs. Most appellate courts also conduct brief, live oral arguments in which the judges ask questions of the attorneys.
In the federal system and in most state systems, the appeals courts determine only legal issues in the case. They will assume the facts found at the lower court level are true, so long as there was some evidence to support these factual findings.
Judgments Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
If the defendant does not pay a monetary judgment against it, many devices then become available to the plaintiff to satisfy that judgment from the defendant s assets. If the defendant wants to appeal and avoid enforcement of the judgment pending appeal, it usually must post a bond in favor of the plaintiff in the amount of the judgment.
Judgments obtained in foreign courts can often be enforced in U.S. state and federal courts, depending upon a variety of factors. The usual way to enforce a foreign judgment is to make a motion to the U.S. court. If the motion is granted, the foreign judgment can then be enforced exactly as if it were a U.S. judgment.
A typical commercial litigation Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
A typical uncomplicated commercial lawsuit will be resolved within one to two years, usually by settlement or by the granting of a motion to dismiss or summary judgment. In less than 3% of cases, a trial will be necessary. Most of the time before the resolution will be spent on discovery and motion practice, with sporadic efforts made to settle the case. The parties will only see the judge a few times during this period, for status or scheduling conferences, to resolve discovery disputes, or to argue motions.
Unless there are disputes, all of the discovery will be handled by the lawyers with little involvement by judges. In federal court, a magistrate judge will often be assigned to resolve discovery disputes.
U.S. legal proceedings are, with rare exceptions, open to the public. All documents filed with a court are considered public records, available for inspection by anyone through the court clerk s office. In rare cases, a court will order that documents be filed under seal, so that they are not available to the public. Only true trade secrets or confidential commercial or financial information will be protected from public disclosure.
Punitive damages Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Juries normally award compensatory damages, which are intended to compensate the plaintiff for the actual harm done to it. There are many theories upon which courts can award compensatory damages. All of these theories have one factor in common they are intended to put the plaintiff back in the same position it would have been in, had the legal wrong not occurred. In a breach of contract case, for example, compensatory damages would allow the plaintiff to recover the amount it would have received had the contract been fulfilled and not breached.
In certain kinds of cases, juries are also entitled to award punitive damages, which are intended to punish the defendant for certain types of improper conduct. Some states place very strict limits on a jury s ability to award punitive damages, while in other states punitive damage awards by juries are much more common. In some well-publicized cases, juries have awarded large amounts of punitive damages. Those cases represent only a small percentage of all commercial cases.
Punitive damages are awarded most frequently in cases where a person is physically injured in some way, in cases of blatant fraud, and for antitrust violations. Therefore, punitive damages are less likely to be a factor in a typical commercial case. Although many plaintiffs attorneys will routinely include a request for punitive damages in their complaint in a normal commercial case, little weight should be given to such a request when considering the settlement value of a case.
Contingency Fees Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Unlike lawyers in the rest of the world, United States lawyers are permitted to represent a client based on a contingency fee agreement. This means that instead of billing for his or her time as the case progresses, or a flat fee, the lawyer s fee is contingent on some recovery after trial or by settlement. In that case, the lawyer receives a percentage of the recovery (one-third is typical); but if the case is lost, the lawyer gets nothing.
Each Party pays its own Attorney Fees Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
With certain statutory exceptions, the rule in the U.S. is that each party to a lawsuit pays its own attorneys fees. Except for those exceptions, there is no loser pays rule as there is in some countries. While the loser does have to pay some court fees, they are usually very small. Nor do U.S. courts have significant filing fees based on the amount of the plaintiff s claims, as in some legal systems. Thus, plaintiffs are free to claim very large amounts of damages in their complaint with no penalty for doing so.
Settlement Just Legal Services - Scuola di Formazione Legale Via Laghetto, 3 20122 Milano
Because the U.S. system is structured in effect to produce settlements, it has many processes to encourage the parties to settle. The parties are free to, and should, discuss settlement themselves, either between the lawyers or the businesspeople from both sides. Many judges will get involved personally in trying to settle cases.
Mediation Unlike arbitration, in which the arbitrators award is binding, mediation is a non-binding process in which the mediator acts primarily as a facilitator of settlement. Mediation can take the place of litigation, or be used to resolve a lawsuit at any point during its course.
Many courts have mandatory mediation requirements by which the attorneys, and often the businesspeople, are required to appear before a court-appointed mediator to try to settle the dispute. In federal court, magistrates are often assigned the task of trying to settle cases. Even appeals courts often have mediation officers who try to resolve appeals by settlement before the judges take the time to read the briefs and study the issues.
In addition to the court s mediation processes, there are a number of private mediation services which the parties can retain to help them settle their disputes. The mediators from these services are often retired federal or state judges who were known for their ability to produce settlements when they were on the bench. The parties can agree on which mediator they want. Parties use such services because they are aware of how costly U.S. litigation is and because they often want to resolve their disputes privately and quickly.