Litigation: USA

1. Describe the general organisation of the court system for civil litigation.

USA

In the United States, there are two parallel court systems. Article III of the Constitution of the United States establishes an independent federal judiciary. The trial courts (United States District Courts) are of limited jurisdiction in that they only hear cases that fall within the jurisdiction established by statute.  See 28 U.S.C. §§1330-1369. Civil cases most frequently are based on the court’s diversity jurisdiction (matters between citizens of different states and citizens of the United States and a foreign state – 28 U.S.C. §1332) and cases that arise under its federal question jurisdiction (matters arising under the United States Constitution, and the laws and treaties of the United States – 28 U.S.C. §1331).

Appeals from decisions of the trial courts are to one of the 13 United States Court of Appeals that are geographically disbursed across the United States. From the Court of Appeals redress may be sought by petition (Writ of Certiorari) to the United States Supreme Court. The United States Department of Justice description of the federal court system may be found at https://www.justice.gov/usao/justice-101/federal-courts.

Separate from the federal court system, each of the 50 states has a state court system that is created and defined under the constitution and laws of the 50 states. In addition, the District of Columbia and the United States territories and protectorates have local court systems.

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

USA

In 1938, the Federal Rules of Civil Procedure were promulgated. Those rules merged proceedings at law and proceedings in equity into one form of civil action. Since the Rules were first promulgated they have been amended on numerous occasions, most recently the Supreme Court proposed amendments in 2020. Importantly, with limited exceptions, the Federal Rules have been a model for the rules of procedure in the state court systems.

3. Describe the general organisation of the legal profession.

USA

Admission to the bar is regulated by each of the 50 states and the District of Columbia. Typically, to be admitted, an applicant must hold a juris doctor degree (or equivalent) from an accredited law school and pass the state’s bar examination. The federal courts regulate practice before those courts. Admission is by motion and typically, a member of the state bar in the state in which the federal court is located is eligible for admission to the bar of the federal court in that state.

Notably, the State of New York has established rules to qualify for admission to the New York State Bar based on the study of law in a foreign country.

4. Give a brief overview of the political and social background as it relates to civil litigation.

USA

Relatively speaking, the culture in the United States is accepting of court proceedings to resolve disputes between the individual litigants but also as a way to advance social causes. In that regard, courts have found that organisations formed to advance various social causes have standing to pursue lawsuits on behalf of their members (representational standing) as well as standing to bring lawsuits where the organisation itself can plead an injury (organisational standing). Class actions have further expanded the role of the courts in addressing matters beyond the narrow dispute between the named parties.

5. What are the sources of law and rules governing international jurisdiction in civil matters?

USA

Jurisdiction is a court’s authority to decide a given case. Whether a case against a foreign defendant can be litigated in a United States court turns on testing the defendant’s contacts with the United States. In general, a federal district court may only exercise personal jurisdiction over a foreign defendant if jurisdiction is authorised by the applicable state long-arm statute and application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment to the US Constitution.U.S.C.A. Const.Amend. 14. ESAB Group, Inc. v. Zurich Ins. PLC, 685 F.3d 376 (4th Cir. 2012). International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 160, which requires that a prospective defendant have fair warning that a particular activity may subject it to the jurisdiction of a foreign sovereign. Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens J, concurring in judgment), the Due Process Clause “gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit”, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72, 105 S. Ct. 2174, 2181–82, 85 L. Ed. 2d 528 (1985).

Sufficient contacts exist when the defendant’s conduct and connection with the forum state are such that it should reasonably anticipate being brought into court there, and when the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Id. Once it has been decided that a defendant has purposefully established minimum contacts with the forum state, the contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice. See Burger King Corp v. Rudzewicz, at 476-478. Thus courts in “appropriate case[s]” may evaluate “the burden on the defendant,” “the forum State’s interest in adjudicating the dispute”, “the plaintiff's interest in obtaining convenient and effective relief”, “the interstate judicial system's interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several states in furthering fundamental substantive social policies” World-Wide Volkswagen Corp. v. Woodson, at 564 (where a defendant who purposefully has directed his or her activities at forum residents seeks to defeat jurisdiction, he or she must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable).

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

USA

Jurisdiction is generally divided between subject matter jurisdiction (power to hear a type of claim) and personal jurisdiction (power over the party being sued in the case). The US Constitution requires that the party being sued – whether domestic or foreign – has certain minimum contacts with the forum in which the court sits. A personal jurisdiction analysis accounts for the nature of a defendant’s contacts with the forum, the purpose of the contact underlying the suit (incidental or specifically targeted), and whether bringing a defendant before a court in that forum comports with reasonableness notions of fair play and substantial justice. Personal jurisdiction can be waived; subject matter jurisdiction may not be waived. Venue is proper where it has been contracted for, where any defendant resides, and where a substantial part of the events underlying the claim occurred.

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

USA

Washington, DC, Texas, New York, California and Florida commonly attract disputes that have a nexus with other jurisdictions. Key motivations behind filing in one of these jurisdictions include the possibility of larger verdicts or to avoid some principle of law that would impede recovery in a different forum. In addition, Florida (especially Miami) has become a focus for business in Latin and South America. In addition, Washington, DC is the seat of the International Centre for Settlement of Investment Disputes, making Washington a preferred venue for post-award court proceedings.

Federal district courts will consider “the totality of the circumstances” supporting a foreign plaintiff’s choice of a United States forum. Circumstances generally indicative of forum shopping, include “[1] attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, [2] the habitual generosity of juries in the United States or in the forum district, [3] the plaintiff's popularity or the defendant's unpopularity in the region, or [4] the inconvenience and expense to the defendant resulting from litigation in that forum”. Iragorri v. United Technologies Corp., 274 F.3d 65, 71–73 (2d Cir. 2001); accord Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 695 (9th Cir. 2009). The more it appears that a plaintiff’s choice of a US forum was motivated by forum-shopping, the less deference the plaintiffs’ choice commands, thereby making it more likely that a court will be persuaded by a defendant’s motion to dismiss for forum non conveniens. In a breach of contract case, additional considerations include whether the agreement at issue contains a forum selection clause. New York, California and Texas district courts will analyse a forum selection clause to determine whether it is valid, mandatory or discretionary, and will balance private and public interest factors.

8. How will a court treat a request to hear a dispute that is already pending before another forum?

USA

Most courts, especially federal courts, will rarely decline to hear a case where there is parallel litigation already pending in a separate court. The general rule is that “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14 (1983) (citing Colo. River Water Conserv. Distr. v. United States, 424 U.S. 800, 813 (1976)).

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

USA

The Texas Arbitration Act (TAA), California Arbitration Act (CAA), and New York CPLR, article 75 (CPLR) are typical of the state arbitration statutes. These statutes generally align with the Federal Arbitration Act (FAA), which considers most arbitration clauses or agreements to arbitrate to be “valid, irrevocable, and enforceable,” unless “grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Further, courts in most jurisdictions will follow a similar analysis in determining arbitrability of an agreement: (1) whether there is an arbitration agreement and if so, (2) whether the claims between the parties come with the scope of the agreement.

If these two questions are answered affirmatively, courts in the United States regard arbitration to be a matter of contract, and “courts must enforce arbitration contracts according to their terms” Schein v. Archer & White Sales, Inc., 878 F.3d 488 (2019). However, in California, the CAA provides judges the discretion to decline to compel arbitration under certain circumstances. One such exception may exist when there are other defendants in a lawsuit who are not bound by the arbitration agreement and the dispute would be possibly be subject to conflicting outcomes on a common issue of law or fact. By contrast, federal, Texas and New York generally law favour arbitration proceedings, even if it will potentially result in inconsistent decisions.

Interim, provisional and conservatory relief in aid of arbitration may be provided by the arbitral tribunal, an “emergency arbitrator” appointed by an administering body or a federal or state court. However, some courts have held that interim measures ordered by an arbitrator or tribunal was inappropriate in an arbitrable controversy where the parties did not specifically provide for it in their agreement. The prevailing view is that under the FAA, a court may grant interim relief pending arbitration. The arbitration laws of California, New York, and Texas similarly permit a party, who is subject to an arbitration agreement, to request an interim measure of protection from a court before or during an arbitration. 

10. May courts in your country review arbitral awards on jurisdiction?

USA

Courts may review an arbitral award as to jurisdiction on a de novo basis unless the parties have, based on “clear and unmistakeable” evidence, delegated jurisdictional decisions to the arbitral tribunal. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). Parties are free, however, to contract around this default rule by assigning the determination of arbitrability to an arbitrator. Generally, if the parties designate institutional rules that delegate jurisdiction to decide the scope of an arbitration agreement to the arbitral tribunal, this designation has been regarded as a “clear and unmistakable” delegation. As the First Options is a decision of the United States Supreme Court, it is binding on all federal courts and, as a practical matter, is the law in state courts as well.

On 31 March 2022, the United States Supreme Court published its decision in Badgerow v. Walters, No. 20-1143, ruling that federal jurisdiction to confirm or vacate an arbitration award must exist independent of the underlying controversy, and it is not sufficient for federal jurisdiction that the underlying claim the parties arbitrated arose under federal law. The practical effect of Badgerow is that where diversity jurisdiction (disputes between citizens of different states of the United States or between a national of the United States and the national of a foreign nation) and federal question jurisdiction (disputes arising under a federal statute or treaty) is also lacking, applications to confirm, vacate, or modify an arbitration award related to a domestic arbitration will be confined to state court proceedings. The Federal Arbitration Act does not provide an independent basis for federal subject-matter jurisdiction over petitions to confirm, vacate, modify or enforce domestic arbitration awards. In contrast to the situation involving domestic arbitrations, for disputes falling under either the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 or the Inter-American Convention on International Commercial Arbitration, Parts 2 and 3 of the Federal Arbitration Act (9 U.S.C. §201, et seq. and 9 U.S.C. §301, et seq.) provide an independent federal district court subject-matter jurisdiction predicate to compel arbitration and to hear applications to confirm (or decline to confirm) an award in matters to which these Conventions apply.

11. Are anti-suit injunctions available?

USA

Anti-suit injunctions, or "stays" of litigation, are available but are considered an extraordinary remedy in the United States. The general rule is that "parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until judgment is reached in one that can be pled as res judicata in the other. See Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926-27 (D.C. Cir. 1984). Almost all federal courts require (1) the parties and the issues in the US matter to be the same as in the foreign proceeding (often referred to as the “gatekeeping inquiry”) and (2) the resolution of the dispute in the US court to dispose of the dispute in the foreign court.

In addition to these requirements, the First, Second, Third, Sixth, Eighth, and District of Columbia Circuits have adopted what is known as the “conservative approach”, which holds that an anti-suit injunction is only permitted if “(1) an action in a foreign jurisdiction would prevent United States jurisdiction or threaten a vital United States policy, and (2) the domestic interests outweigh concerns of international comity.” Goss Int'l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 359 (8th Cir. 2007). Other jurisdictions use a more liberal approach that “places only modest emphasis on international comity and approves the issuance of an antisuit injunction when necessary to prevent duplicative and vexatious foreign litigation and to avoid inconsistent judgments. Goss, 491 F.3d at 360.

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

USA

In the United States, common law principles of sovereign immunity have been codified in the Foreign Sovereign Immunities Act (FSIA). That statute sets out the immunity from suit afforded foreign states, agencies, and instrumentalities and provides the specific exceptions:

• waiver;
• commercial acts;
• expropriations;
• rights in certain kinds of property in the United States;
• non-commercial torts, enforcement of arbitral agreements and awards;
• state-sponsored terrorism;
• maritime liens and preferred mortgages; and
• counterclaims.

28 U.S.C. §§ 1605A, 1605(a)-(d), 1607.

Courts in the United States may enforce arbitration awards against sovereigns or state entities where:

• the arbitration takes place, or is intended to take place, in the United States;
• the agreement or award is (or may be) governed by a treaty or international agreement in force for the United States that calls for the recognition and enforcement of arbitral awards; or
• the underlying claim could have been brought in a US court but for the agreement to arbitrate or if the foreign state has waived its immunity.

28 U.S.C. § 1605(a)(6) (2010).

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

USA

Proceedings are commenced by filing of a complaint with the court. The complaint is to include a statement of the facts upon which the action is based sufficient for a court to determine whether the action is one upon which relief can be granted. In federal court the complaint must also state facts sufficient to invoke subject matter jurisdiction of the court, and show a basis for the court to exercise personal jurisdiction over the named defendants. After the proceedings are commenced, it is typical for the court to issue a scheduling order that will provide a timetable for the progress of the proceedings. In addition to the commencement of the proceedings with the filing of the complaint, the plaintiff may request that a lay-person jury be empanelled as the finder of fact. In jury trials, the court reserves to itself application of the law.

14. What are the requirements for filing a claim? What is the pleading standard?

USA

Notice pleading will guide the extent to which the statement of claim (complaint) requires particulars.  Typically, the statement of claim must set forth facts upon which a court could grant relief. In addition the complaint should specify the relief being sought. A higher level of specificity is typically required where the claim alleges fraud. There, the complaint must state with particularity the circumstances constituting the fraud. 

15. What are the requirements for answering claims? What is the pleading standard?

USA

The defendant, as a preliminary matter, may test the sufficiency of the complaint by a motion to dismiss challenging, as appropriate, the subject matter jurisdiction of the court, personal jurisdiction over the defendant, venue, sufficiency of process, sufficiency of the service of process, and failure to state a claim upon which relief can be granted. The enumerated grounds for a motion testing the sufficiency of the lawsuit are waived if not advanced in the first pleading except that questions relating to the subject matter jurisdiction of the court and to the sufficiency of the plaintiff’s claims are not waived. If the proceedings are to continue after the court has ruled on a motion to dismiss, the defendant is required to answer the paragraphs of the complaint stating whether it admits, denies or lacks information sufficient to admit or deny each of the factual allegations in the complaint. In addition, the defendant may advance affirmative defences such as waiver, estoppel and statute of limitations, among others. If the plaintiff has not demanded a jury, the defendant may demand a jury.

16. What are the rules regarding further briefs and submissions?

USA

Between the commencement of the proceedings and trial, the parties may, with limitations as prescribed in the court rules, amend the claims for relief, revise the grounds of defence and seek a summary adjudication of some or all of the claims, among other applications that a party may elect to make. In substantial measure, the time between the commencement of the proceedings in trial will be devoted to pretrial discovery in the form of written interrogatories, requests for production of documents, requests for admissions and taking testimony from party witnesses, non-party witnesses and expert witnesses, collectively referred to as deposition discovery.

17. To what degree are civil proceedings made public?

USA

Unless the court enters an order sealing some or all portions of the court file, court proceedings in the United States are open to public inspection. The federal court system makes all matters of record available online at https://pacer.uscourts.gov/. An ever increasing number of state courts are making the proceedings available online.

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

USA

Typically, the judge assigned to a case will not be an active participant in settlement discussions. Many courts require the parties to engage in settlement discussions, frequently through a court-administered mediation process. In the federal court system, often magistrate judges serve as mediators. In state court proceedings, many courts have formal mediation programmes in which the courts appoint mediators.

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

USA

Mediation is a frequently used alternative dispute resolution method. Many courts have mandatory mediation. In addition, either by court rule or state statute, the mediation process, including any statements made by the parties during the mediation, are shielded from being used against a party in the court proceeding. In addition, in commercial disputes, private mediation is often used in an effort to achieve a settlement.

20. What are the forms of emergency or interim relief?

USA

Both under the federal rules and the state court rules of procedure, litigants may petition the court for interim and conservatory measures, including both prohibitory and mandatory injunctions as well as other equitable emergency or interim relief as may be appropriate.

21. What must a petitioner show to obtain interim relief?

USA

To obtain injunctive relief, typically the petitioner must show that the applicant (1) is likely to prevail on the merits; and (2) will suffer irreparable injury if relief is not granted. In addition, the applicant must show that (3) the threatened injury to the applicant is demonstrated to outweigh whatever damage the proposed injunction may cause the opposing party; and (4) that granting the relief would be in the public interest. Often, the applicant will have to provide a bond in an amount determined by the court in order to ensure that there will be funds available to compensate the opposing party for its injury if it is ultimately determined that the relief was improvidently granted.

22. What types of decisions (other than interim relief) may a court render in civil matters?

USA

Where the proceedings are before a judge, the court will issue an opinion setting forth its findings of fact and conclusions of law that give rise to the judgment rendered by the court. Where the matter is tried to a jury, the jury will be asked to render a verdict. Sometimes the verdict form simply asks the jury whether it finds for the plaintiff or the defendant, and if for the plaintiff in what amount. In other proceedings, the parties have an opportunity to have special questions put to the jury, which asks the jury to make findings on the essential factual issues in the case. The court, after receiving the jury verdict, enters a written judgment on that verdict.

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

USA

Determination on the merits may come on a motion to dismiss, if the dismissal is without leave to amend, on a motion for judgment on the pleadings, on a motion for summary judgment where matters outside of the pleadings may be introduced by way of affidavit/declaration or responses to discovery and at the conclusion of trial proceedings.

24. Under which circumstances will a default judgment be rendered?

USA

If a defendant fails to respond to a summons and complaint in the time provided, the plaintiff may ask the court to enter a default. If the defendant, after notice of the default, does not take steps to vacate the default, plaintiff may ask the court to enter a default judgment. Where the amount of damages is not a liquidated sum, the court will hold a hearing at which the plaintiff will introduce evidence establishing the quantum to which it is entitled.

25. How long does it typically take a court of first instance to render a decision?

USA

Before March 2020 and the suspension of court proceedings throughout the United States, non-jury proceedings would often be determined within 15 to 18 months after the proceedings were initiated.  Frequently jury proceedings will take three to six months longer. Given the substantial backlog of cases due to the covid-19 restrictions, it is anticipated that proceedings will take at least six to nine months longer than they would have before the suspension of court proceedings.

26. How can third parties become involved in proceedings?

USA

With respect to the involvement of third parties, the law encourages the consolidation of lawsuits to reduce judicial caseloads, expedite the adjudication of rights, and avoid the possibility of inconsistent judgments. Accordingly, the Federal Rules of Civil Procedure contemplate four mechanisms by which third parties may become involved in proceedings: (1) joinder; (2) impleader; (3) interpleader; and (4) intervention. Joinder may be permissive or compulsory under Rules 18 through 21. Where joinder is compulsory, the failure to join a party necessary to the lawsuit may result in the case’s dismissal.  Impleading and interpleading, on the other hand, are tools to pass on judgment liabilities to third parties and to ensure that the proper stakeholders in a case are parties to the proceeding, respectively. By means of intervention, which may be as of right or permissive, non-parties who have an interest in the lawsuit may protect their rights by presenting claims or defences. With limited exceptions (see question 45), the prevailing view is that a third party is not bound by a decision in a case in which the third party did not participate.

27. Describe the rules of fact-finding in your jurisdiction.

USA

Fact-finding, also known as discovery, is generally governed by the discovery rules of the applicable state court or by federal rules of evidence for proceedings in federal courts. There are different levels of discovery. These are commonly set forth at the outset of a lawsuit. The three most common types of discovery are written discovery (written questions and requests for admission of facts), document production and oral deposition. The parties generally administer the discovery process without the supervision by the court, except where the court is asked to intervene by a party to resolve disputes that arise, for example, for failure to produce certain identified documents or disputes that arise in the course of depositions. Fact witnesses are commonly presented at court to provide direct testimony in support of a case.  

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

USA

Typically, the court will rely on the parties to request the taking of evidence and to present it. Courts usually do not get involving in the taking of evidence unless requested to do so by the parties. Federal and state courts have their own set of rules for production of evidence and a court’s role in this process if necessary.

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

USA

There is no general duty per se to produce evidence that is harmful or otherwise prejudicial to a party’s case. However, in almost all cases, the parties have a right to seek and obtain information that either supports or undermines a party’s legal and factual theories. Parties will generally seek this information by issuing document requests, requests for party admissions, oral depositions, request for disclosures, and/or request for legal contentions (referred to as “interrogatories”) among other methods. Parties generally do have a duty to produce or otherwise provide information, including harmful evidence, once that information is requested so long as the information sought is relevant to the dispute and/or would lead to the discovery of admissible evidence.This does not include information that is protected by the attorney-client privilege or that is attorney work-product.

If relevant or otherwise non-objectionable evidence is sought by a party but is not disclosed, a court generally has wide discretion in issuing discovery-related sanctions, including monetary fines, orders that the helpful/harmful discovery not produced be deemed in favor of the other party, and/or that a party be prohibited from supporting or opposing designated claims or defences.

Moreover, every jurisdiction (both federal court and in state court) will have its own prescribed rules setting forth the parties’ discovery obligations for a particular case. In almost all civil cases, there will also be a document control order provided by the court and/or agreed to by the parties that may have additional rules and guidelines with respect to the parties’ disclosure requirements.

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

USA

Witness evidence usually takes the form of in-court appearance, sworn affidavits, document production and oral deposition. Often all three of these methods are used in a case. A fact witness may provide evidence in person testimony and in some situations by written affidavit that serves as a direct testimony. That testimony often accompanies briefs or other written submissions in support of certain factual arguments. Documents are often included to support the affidavit. Witness preparation prior to oral testimony is allowed and is a common practice. Of course, a lawyer may not coach a witness to give false or untrue evidence.  

31. Who appoints expert witnesses? What is the role of experts?

USA

Usually, the parties will appoint their own experts. The role of the expert, as opposed to a fact witness, is to provide neutral support to theories or important information essential to a legal claim or defence, or an aspect to such a claim or defence. Experts often testify as industry experts, such as for complex areas such as intellectual property or pharmaceutical issues, engineering questions in construction disputes, medical science in malpractice cases to offer opinions on the issues that require expertise. Other common uses for experts are to support or oppose damages claims. This is done by “valuation” experts, who specialise in testifying on applicable damages theories in court proceedings. Experts are typically paid for their supporting testimony by the party who engaged them. Note: the court plays a gatekeeper function and will evaluate the expert's qualifications before receiving the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny are the seminal authorities in the United States federal courts and are often followed in state courts.

32. Can parties to proceedings (or a party's directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party's failure to testify or act as a witness?

USA

Yes, parties to proceedings can act as witnesses. Oftentimes, a party will request discovery such as documents and an oral deposition from a company representative of the opposing party. The question of negative inferences is complex and very fact-dependent; however, negative inferences can be drawn in certain circumstances in civil litigation.

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

USA

The Federal Rules of Civil Procedure provide that federal courts have broad discretion to consider the applicability of foreign law and to what extent it is to be applied. In certain instances, the parties can stipulate that a certain foreign law applies. Larger questions arise when it comes to whether courts should cite to foreign legal sources. Regarding foreign language documents at trial, the federal rules place upon the offering party the obligation to provide translations. For foreign language documents being produced in the discovery process, the parties will often attempt to seek agreement on which documents are to be translated; however, the court may intervene if needed.

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

USA

In most civil litigation, the standard of proof is “preponderance of the evidence”. This means that the evidence shows that the defendant is more-likely-than-not to be responsible for the underlying claim. This standard of proof is the most common in civil litigation. A “clear and convincing” standard typically applies to claims of fraud. This higher standard may also apply where relief beyond money is sought, such as disputes over wills or conservatorship.

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

USA

Litigants may appeal by right a state or federal trial court decision to a higher court. Only a minority of civil appeals will result in a fully reasoned opinion as most appeals will be disposed of by order, through summary proceedings without oral argument, or through mandatory mediation programmes instituted by many appellate courts. In some states as well as federal courts of appeal, there is a further opportunity to appeal to a state high court, in some instances named a state supreme court, or to the US Supreme Court. Appeals from an intermediate to a high court are granted at the latter court’s discretion, necessitating a so-called petition for certiorari prior to briefing on the merits. The US Supreme Court only grants a small fraction of such petitions each year.

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

USA

Both questions of law and fact are subject to appellate review. The applicable standard of review differs between the two. In general terms, questions of law are reviewed anew (de novo) (ie, without deference to the reasoning of the lower court or the administrative agency unless that agency has a particular expertise with a statute or regulation). Appellate courts more readily defer on questions of fact, setting them aside only for clear error in the case of judicial determinations of fact or for insufficient evidence in the case of jury trials – both are high standards to meet on appeal. Mere procedural errors by lower courts or agencies do not result in reversal on appeal unless those errors inflicted actual harm on the losing party below.

37. How long does it usually take to obtain an appellate decision?

USA

Federal appellate courts resolve appeals within nine months of filing. While that median stood at 9.1 nationwide during the 12 months preceding October 2020, there are notable regional outliers with the Second Circuit Court of Appeals in New York experiencing the longest median time to resolution of 12.8 months, whereas the Sixth Circuit, including Texas, clocked in at a mere 7.9 months. State courts of appeal, on the other hand, have in some instances significantly longer median turnaround times – with the California Courts of Appeal, for example, taking a median 589 days to resolve appeals according to the most recent statistics.

38. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

USA

Where an arbitration is seated in the United States or enforcement is sought in the United States, the Federal Arbitration Act applies to domestic “interstate” arbitrations (involving parties in more than one US state), to international commercial arbitrations, and to investor-state arbitrations. It mandates that arbitral awards are to be confirmed except in limited circumstances. States have their own arbitration statutes that usually parallel the FAA. If state law is contrary to federal law, the federal law will control.

39. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

USA

Outside of actions to confirm or enforce arbitral awards, US courts generally do not interfere with tribunals’ threshold jurisdictional rulings unless the parties contractually withheld Kompetenz-Kompetenz.  US courts have intervened when the tribunal selection process itself broke down.  The courts do not entertain interlocutory actions against the selection of a particular arbitrator, but an arbitrator’s appointment may be challenged at the set-aside stage.

US courts may also be called upon to stay proceedings before them if the action is subject to an arbitration agreement, or to compel arbitration of a dispute. Under 28 U.S.C. section 1782, federal courts may assist parties to proceedings before international tribunals with obtaining discovery from third parties within the jurisdiction of the court. Federal appellate courts are split on whether international commercial tribunals are covered by the statute, The question was argued at the US Supreme Court in March 2022 and a decision is expected before the end of June 2022.

40. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

USA

US courts are reluctant to review the substance of arbitral awards in confirming or enforcing arbitral awards safe in limited circumstances. Chapter 1 of the FAA states that a court may vacate an award, eg, where the award was obtained by corruption or fraud, where the arbitrators were partial or corrupt or otherwise guilty of misconduct, or where the arbitrators exceeded their powers. All but the Eleventh Circuit agree that these grounds apply to domestic as well as New York Convention arbitrations seated in the United States. Chapter 2 of the FAA incorporates the New York Convention grounds for non-enforcement and non-recognition, ie, article V’s party incapacity, questions beyond the scope of the arbitration agreement, and other enumerated grounds.

In addition, US courts, including the Second Circuit in New York, continue to permit vacatur for “manifest disregard of the law” – a common law ground not stated expressly in the FAA. The US Supreme Court has cast doubt upon the manifest disregard ground without going so far as to strike it. Even where manifest disregard continues to be a valid ground for vacatur, courts rarely if ever vacate an award on that ground. To the contrary, courts have gone so far as to sanction counsel for invoking this ground under certain circumstances.

41. Are class actions available?

USA

Class actions are available, but the US Congress and US Supreme Court have both taken actions to limit their application. Rule 23 of the Federal Rules of Civil Procedure is the primary source of law relating to class actions in federal courts, and most US states have enacted legislation analogous to Rule 23 to govern class actions in their state courts. Class actions are generally permitted in all areas of law, including: product liability, environmental law, anti-trust and competition law, as well as civil rights and securities. The vast majority of class actions in the United States are plaintiff class actions in which one or more named plaintiffs sue one or more defendants on behalf of themselves and the absent plaintiffs. Class actions are subject to limitation periods and sufficiently precise definitions of the “class” bringing the claim(s) at issue.

42. Are derivative actions available?

USA

Derivative actions are available, and consist of two parts: an action to compel a corporation to sue and an action by a shareholder on behalf of the corporation to redress harm to the corporation. The derivative action thereby permits shareholders to monitor and redress harm to the corporation caused by management when it is unlikely that management itself would redress such harm. An action is derivative when it is brought by a shareholder on behalf of the corporation for harm suffered by all shareholders in common. Where the harm is suffered by an individual shareholder or group of shareholders, by contrast, the action is said to be direct. For a derivative action to be permissible, Rule 23.1 of the Federal Rules of Civil Procedure and most state rules require a plaintiff to be a shareholder of the corporation at the time the derivative action is filed and at the time of the challenged transaction. Upon the commencement of a bankruptcy proceeding, derivative claims become the property of the bankruptcy estate and are subject to the control of the Bankruptcy Court.

43. Are fast-track proceedings available?

USA

Civil litigation cases may proceed along a “fast track”, subject to the approval of the court and the agreement of all parties. Whether proceedings can be placed on a fast track depends on whether the court with jurisdiction over those proceedings has created an expedited process for hearing those proceedings. Where such a fast-track process exists, parties can avoid the costliest parts of the litigation process and move ahead to a short trial.

44. Is it possible to conduct proceedings in a foreign language?

USA

Court proceedings in the United States cannot be conducted in a foreign language, but federal law provides that non-English speakers be afforded access to language assistance services, including interpreters and translation.

45. What legal effects does a judgment have?

USA

A judgment is the official statement of the court disposing of a case. See Federal Rules of Civil Procedure 54 and 58.

The general rule of claim preclusion provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound as to every matter that was offered and received to sustain or defeat the claim or demand. As a general principle, a person cannot be bound by a judgment resulting from litigation to which they were not a party. In certain limited circumstances, a non-party is adequately represented by someone with the same interests who is a party. Amos v. PPG Industries, Inc., 699 F.3d 448, 452, 54 Employee Benefits Cas (BNA) 1921, 194 L.R.R.M. (BNA) 2585 (6th Cir. 2012).

A judgment will not normally bar non-parties from brining new litigation based on the same nucleus of facts. This is rooted in the historic tradition that everyone should have his own day in court with a full and fair opportunity to litigate the claims and issues, a person not designated a party to an action nor served with process in it is generally not bound by a judgement in personam entered in the action. Taylor v. Sturgell, 553 U.S. 880, 893, 128 S. Ct. 2161, 171 L. Ed. 2d 155, 36 Media L. Rep. (BNA) 1801 (2008). However, in Taylor, the Supreme Court identified six such exceptions such that the non-party may nonetheless be bound by a judgment entered in the action. First, a non-party who agrees to be bound by a judgment in an action is bound in accordance with the terms of his agreement. Second, a non-party may be bound by a judgment based on a variety of pre-existing substantive legal relationships between the non-party and a party in the action, such as preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. Third, a non-party may be bound by a judgment when the non-party was adequately represented in the action by a party with the same interests, such as in properly conducted class actions, and suits brought by trustees, guardians and other fiduciaries. Fourth, a non-party is bound by a judgment if the non-party assumed control over the litigation in which that judgment was rendered. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy, making preclusion appropriate when a non-party later brings suit as an agent for a party who is bound by a judgment. And sixth, in certain circumstances a special statutory scheme may expressly foreclose successive litigation by non-litigants if the scheme is otherwise consistent with due process. These six exceptions to the rule against non-party claim preclusion constitute an exhaustive list for cases such as this (Id). As the Taylor Court stated unequivocally, “The preclusive effects of a judgment in a federal-question case decided by a federal court should be determined according to the established grounds for non-party preclusion described in this opinion” (internal citations parentheticals, brackets, ellipses and some quotation marks omitted)).

46. What are the procedures and options for enforcing a domestic judgment?

USA

A money judgment in federal court is enforced by a writ of execution, in accordance with the procedures of the state where the court is located. Discovery may be taken in aid of execution. See Federal Rule of Civil Procedure 69. To enforce a judgment requiring a specific act, a court may order another person to perform the act at the disobedient party’s expense. The court may also enter an order divesting a party of property and vesting it in the enforcing party. Additionally, the enforcing party may seek a writ of attachment or sequestration against the disobedient party’s property to compel obedience with the judgment. They may also obtain a writ of execution or assistance. See Federal Rule of Civil Procedure 70.

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

USA

State law governs the recognition and enforcement of foreign-country judgments. In 1962 and again in 2005, uniform Recognition Acts were introduced to codify the common law with respect to the recognition of money judgments in other countries, and to further the goal of establishing “uniform and clear standards” under which courts will enforce foreign-country judgments. The majority of states and the District of Colombia have adopted some version of these model laws. Texas, Delaware and New Jersey, for example, have each adopted the 2005 version of the Recognition Act.

The applicable Recognition Acts provide that “a court of this state shall recognise a foreign-country judgment to which this chapter applies.” See TEX. CIV. PRAC. & REM. CODE § 36A.004; DEL. CODE. ANN. Tit. 10 § 4803; N.J. STAT. ANN. § 2A:49A-16.20. The Recognition Acts define “foreign-country judgment” to be “a judgment of a court of a foreign country”. Id. Further, the Acts apply to a “foreign-country judgment to the extent the judgment (1) grants or denies recovery of a sum of money; and (2) under the law of the foreign country in which the judgment is rendered, is final, conclusive, and enforceable”. Id.

Conversely, the Recognition Act does not apply to a foreign-country “judgment for taxes,” “fine or other penalty”, or “a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations”. TEX. CIV. PRAC. & REM. CODE §36A.003; DEL. CODE. ANN. tit. 10 § 4802; N.J. STAT. ANN. § 2A:49A-16.3. The party seeking recognition bears the burden of establishing that a foreign decision meets the requirements of the Recognition Act. Id.

48. Will the successful party's costs be borne by the opponent?

USA

Under the American Rule, the general rule in the United States is that each party must pay its own attorneys’ fees and costs. Exceptions to the American Rule do, however, exist. Parties may contractually agree that a prevailing party’s fees and costs will be borne by the opponent. Similarly, federal and state statutes may also provide for fees and costs to be paid to a successful party. Where fees and costs may be obtained by a prevailing party, the amount obtainable is often litigated with respect to its reasonableness, the degree of success achieved by the prevailing party, and other aspects of the request for payment.  

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

USA

A party who may not be able to afford litigation can obtain support with respect to court proceedings through pro bono legal service providers. Such providers can take on the legal representation of a client and offer legal advice that would otherwise be costly to obtain. Other options that may be available to impecunious litigants, short of retained counsel, include representation through public defenders or court-appointed attorneys. 

50. Are contingency fee arrangements permissible? Are they commonly used?

USA

Contingency fee arrangements are permissible in the United States. Such arrangements are common in personal injury and workers’ compensation cases, but less so in other types of litigation. The percentage allowable as a contingency fee is subject to the rules of professional conduct governing ethical attorney behaviour that provide that legal fees be reasonable. In some cases, the contingency fee amount is constrained by statutory limitations.  

51. Is third-party funding allowed in your jurisdiction?

USA

Third-party litigation funding is permissible and well developed in the United States, but continues to be subject to an evolving regulatory regime. Although many states within the United States historically prohibited third-party funding by recognising the torts or crimes of maintenance and champerty, these doctrines have been applied in more limited fashion in recent times to allow third-party funding to grow. Nevertheless, states have passed legislation aimed at regulating certain aspects of third-party funding, including by capping interest rates consumer litigation funders can charge. Additionally, courts are increasingly requiring the disclosure of at least some details of third-party funding arrangements. With respect to third-party funder control over the litigation, certain states have passed legislation to regulate the litigation funding industry and ensure that funders do not direct conduct in the litigation.

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

USA

With respect to fees, attorneys in the United States are free to enter into contractual agreements with their clients. Such contractual fee arrangements, however, are subject to the rules of professional conduct issued by the American Bar Association and local bar associations. Pursuant to such rules, attorneys shall not make agreements for unreasonable fees or an unreasonable amount of expenses, taking into consideration factors including time, labour, the nature of the questions involved and the skill needed to perform the legal services properly, among others.