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International (And China) Litigation. The Questions To Ask.

By Dan Harris on Posted in Legal News

Like every lawyer in the Western World, I love reading Above the Law for its salacious gossip. My favorite item was many years ago when they posted on the (completely untrue) rumor that my law firm was in merger talks with Baker & McKenzie. It is not the site on which one expects to see a really top-notch article on international litigation.

But there it was, ”Inside Straight, Overseeing International Litigation, by Mark Herrmann, an in-house lawyer with AON and author of The Curmudgeon’s Guide to Practicing Law.  Hermann has learned international litigation by virtue of being “ultimately responsible for all litigation filed against my company anywhere in the world.” Hermann gives an excellent primer on the questions to pose to “outside counsel overseas:” 

  • Do you have juries in your country for a case such as mine? 
  • Does the losing party pay the winning party’s legal fees? 
  • Is it possible to learn before trial what evidence the other side is likely to present in court? If so, is that procedure restricted to learning in advance what documents the other side will offer, or are we allowed to put the other side’s witnesses under oath and learn before trial what the oral trial testimony is likely to be? 
  • Is it possible to get out of a lawsuit before a trial is held? If so, when will we have those opportunities, and what standards will the court apply?  
  • Can we trust the judicial system, or are the judges typically corrupt?

These are all good questions and here are a few more that I typically ask when I am overseeing international litigation:

  •  If we win, how can we collect?
  •  Do judges care much about live witnesses or are documents everything/nearly everything?
  • How long from filing until trial?
  • What do we need to do to get evidence from the other side? From third parties?
  • Do cases usually settle before trial? In the United States, something like 98% of all civil cases settle before trial. In China it “feels” like 98% go to trial.
  • What do you charge? Can lawyers take cases on a contingency fee basis?
  • What do we need to do to make sure we win this case?

Any more?

  • Charles L.

    What a fascinating piece, by the both of you. My kudos.

  • Hendrik

    Great questions. I am a Western lawyer (in Amsterdam) and I had never read Above the Law. I certainly will now though.

  • Twofish

    A few more……
    * How much training is the judge likely to have? How are judges selected and promoted?
    * What is the appeals process like? What determines finality?
    * How does the judge interact with outside actors?
    * What impact does public opinion have on the decision of the court?
    * What are foreign counsel allowed to do? What are foreign counsel not allowed to do?
    * What is the process for taking a deposition? For serving a summons? To what extent are out of court statements by either the counsel or the parties admissible in court?
    * How do different courts (i.e. local and national) interact with each other?
    * Are punitive damages or damages for emotional distress allowed, and what are the likely amount of recovery?

  • BP

    Nice list and thank you TwoFish for adding to it.