Litigation in US Courts: As a Rule Expensive and Time Consuming
By Aaron N. Wise, Attorney at Law © 2009
Commercial lawsuits in the U.S. courts are typically expensive and time consuming. In most cases, it is not a swift method for resolving disputes.
Unless there is a contract between the disputing parties stating that you, the foreign party, are entitled to recover in litigation your legal fees connected with the litigation, U.S. law generally does not permit that. There are only a few exceptions to that rule.
The lawyers for both sides can use various procedures to delay the day of final decision of the case by the U.S. court. A good example is Apre-trial discovery mechanisms@. In a great many countries, it is primarily the judge who controls and directs the production of evidence. The lawyer presents his proof to the judge and from there, finds out what counterarguments his opponent has. In U.S. civil law suits, it is the lawyers for each party that obtain from the other, normally without court intervention and well in advance of the actual trial, all of the evidence the other side. This is done via pre-trial discovery mechanisms such as:
- depositions (oral testimony under oath given by a witnesses, often in the office of the document inspection requests (the party receiving this request must provide opposing counsel with copies of all requested documents having some relevancy to the case. Locating, reviewing and assembling the documents can often be time consuming;
- interrogatories (written questions, which are often quite voluminous, complicated and take time to answer properly;
- notice to admit or deny (statements are made which the other party is asked to admit or deny).
- bill of particulars (a document requiring the claiming party to provide detailed explanations of its claims, counterclaims and causes or actions, or of certain defenses to the claims (directed to the defendant). notice to admit or deny.
This Adiscovery@ can produce high legal fees for both sides, and, as mentioned, can be used as a delaying tactic. Of course, that does not always occur. Sometimes the lawyers will use no or relatively little Apre-trial discovery@. However, one should normally presume that in most cases there will be a fair amount of pre-trial discovery.
It is often not feasible to prosecute commercial lawsuits in the USA where the plaintiff is claiming less than around $100,000 in damages. The reason is that the costs, particularly legal fees, will normally be too high in comparison with the relatively small amount of damages. If, however, the parties have agreed to arbitrate their disputes and claims and the arbitration clause is properly drafted, then it might be cost effective to sue in arbitration for the small (or larger) claims.