A while back the Florida Bar held its Annual International Litigation and Arbitration conference in Miami, Florida. As Program Chair of the Conference, I had the privilege to sit in on some great panels. One panel called “Your Client Has been Sued in the U.S.—Now What?” was particularly interesting.
As its name suggests, the panel was geared towards foreign companies and individuals that for one reason or another find themselves being sued here in the U.S. As an attorney practicing in Miami, I field calls all the time on this very topic.
While the panel discussion was intended as a general overview of what a foreign company or individual can expect when faced with a lawsuit in the United States, it also presented excellent practical advice. Miami Attorney H.G. Milne’s presentation did a great job of synthesizing key points, which I’ve included below:
Don’t Assume Your Client is Familiar with the U.S. Legal System
As a preliminarily matter, it’s important to keep in mind that your client may not know that the U.S. legal system is far different than many other legal systems.Words such as “filing fees” “evidence” and “discovery” may mean something completely different to someone from a system where: 1) filing fees may be as much as 10% of the damages sought; 2) all evidence in support of a case must be known at the time of filing and attached in writing to the demand document; and 3) there is absolutely no right to take discovery.
It’s likely that the client will come to you with all types of fears and preconceptions. These fears may include fear of litigation generally, fear of the jury system, fear of unfair verdicts and fear of judicial corruption. As Milne points out, fear of corruption may be so endemic in the client’s home country that the client assumes it is how things are done everywhere. Be sure to discuss your client’s fears and explain how they are not as frightening as they appear.
Accurately Convey What Your Client is Facing—in His Own Language
Milne offers a great practice point, which I use in my own practice. That is, to develop a written narrative and summary of basic facts that you can give the client. If possible, the narrative should be done in the client’s native language. The narrative will come in handy long after the client has left your office and has forgotten much of what you said. This is also a great way for the client to report back to others at home, including domestic counsel, who may well be working with you.
Explain the Threshold Issues
While all cases present a unique set of facts, there are two threshold issues that routinely come up when the defendant is from abroad.
First, do you have to fight here? Is your client really subject to the jurisdiction of the U.S. court? This typically involves four considerations: 1) is there a treaty that applies and is it mandatory that its service of process requirements be followed?; 2) is there an alternative means of service of process legally available, and have its provisions been followed?; 3) does the relevant Long-Arm statute confer jurisdiction?; and 4) does your client have sufficient “minimum contacts” with the forum to satisfy due process requirements?
Second, can you move the case abroad? There is a reason why the plaintiff chose to file suit here. Maybe the case cannot be proven without discovery, and the foreign forum provides no discovery rights. Or maybe the measure of damages abroad is much lower, or punitive damages are not available. However, none of these factors necessarily precludes a successful forum non conveniens challenges: the U.S. standard as to what a “fair” foreign system is considerably low and the unavailability of discovery or a lower scale of damages is generally not a relevant concern.
In the great majority of cases, If you can successfully win a dismissal in favor of the foreign forum, doing so may not just postpones the fight, but will often kill the case entirely. Your clients would probably like that.
It’s coming—that call from a foreign client that’s been sued in the U.S. Even if you think of yourself as a domestic litigator, the fast pace of international trade and commerce will virtually guarantee that during the course of your practice, you’ll be called upon to advise a foreign client. While the above is a general overview of items to consider, it’s a great place to start to put your client at ease.