Your Client Has Been Sued in the United States– Now What?

By Santiago A. Cueto

As an international litigation attorney, I‘m frequently contracted by foreign company

executives for advice on how to defend their companies in U.S. litigation.

While every case is different, this article serves a general overview of what a foreign company or

individual can expect when faced with a lawsuit in

the United States. The article also presents some

practice points to consider.

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

“A great practice point to consider

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”

3) there is absolutely no right to take discovery.

Manage Fears

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.

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

A great practice point to consider 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.

1. Do You Have to Fight Here? Is your client really subject to the jurisdiction of the U.S.

court? This typically involves a host of considerations:

a) is there a treaty that applies and is it mandatory that its service of process

requirements be followed?;

b) is there an alternative means of service of process legally available, and have its

provisions been followed?;

c) does the relevant Long-Arm statute confer jurisdiction?; and

d) does your client have sufficient “minimum contacts” with the forum to satisfy due

process requirements?

2. 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.

Conclusion

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 virtually

guarantees 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 start towards

putting your client at ease.

Good Luck!

Santiago Cueto