Plaintiffs’ attorneys are universally motivated by a single factor: making their clients whole. As a result of that, tortfeasors are held accountable– and hopefully they correct harmful behavior– so the world is made a better, safer place. Sure, there’s a seemingly massive amount of money to be made, but most trial lawyers are firmly rooted in the middle class. Doing well, but not spectacularly so, unless that one big unicorn of a case comes along. Even the stars of the plaintiffs’ bar got to be stars only because the right client (the unicorn) walked into their office one day long ago.
In chasing the unicorn, we sometimes get into a case that will eventually lead nowhere, only draining firm resources. We don’t even need to chase the mythical horse to get into an impossible case, especially if the defendant is located abroad.
- We see, in that chair across the desk, a fellow who’s been hurt, and our natural inclination is to go after the bad guys and make the poor fellow whole.
- We know a lawyer in Kansas City who can get the offshore defendants served (hint, hint).
- We know we have a good shot at empaneling a sympathetic jury.
- We think we can win.
But two critical questions often get missed, only to be asked after filing and after hiring somebody like me to deal with the initial due process concerns (or worse, wading into the fray alone). One focused on the beginning, and the other focused on the end:
- How do you establish jurisdiction? (The one we’re discussing here.)
- How do you get paid? (The one we’ll discuss later.)
Both are tougher than you might think. And both are best illustrated with a hypo (pretty straightforward stuff):
A young fellow and his new wife escape the brutal Iowa winter and go to the tropics on their honeymoon. While he’s walking through the hotel lobby from the beach to the buffet, he doesn’t notice a puddle of water on the floor. Apparently, neither does the staff. As the guy steps through the puddle, his feet slide from beneath him, and he cracks his head on the floor. Honeymoon ruined, medical bills amassed, work missed… a textbook slip & fall case.
By all accounts, a lawsuit is in order, so he seeks counsel.
The most important issue in whether a lawyer takes the case: where did it happen?
Well, if it’s in Florida or Hawaii, things are fairly simple– sue in Florida or Hawaii, unless the guy bought a package deal that the resort advertised in the Des Moines Register. But what if the resort is in the Dominican Republic or Sri Lanka or Mauritius? How about France or Greece? What if, instead of using a professional travel agent, he booked the trip himself, directly through the resort’s website?
Establishing jurisdiction is going to be tough. Enforcing a judgment is going to be even tougher.
The Nine Wise Souls haven’t had a completely cohesive view of personal jurisdiction in ages. When I studied the issue in Civ Pro a few years ago,* the most current case was Asahi, and even there jurisdictional analysis was a maze of contradictions in a somewhat-plurality opinion. Since that time, more opinions have come down from One First Street, but they don’t lay out a test to replace Asahi or the International Shoe/Worldwide Volkswagen line of holdings (essentially, purposeful availment, stream of
consciousness commerce, etc.). Consequently, state courts and lower federal courts are still all over the map in dealing with the issue.
Now, to be sure, I’m not up to speed on those SCOTUS decisions. I just don’t have the emotional or intellectual stamina to navigate the labyrinth, and fortunately, I usually don’t need the answers; I’m a support lawyer, rather like the special teams coach or the really funny sidekick from Necessary Roughness (Sinbad).
But I can tell you that an Iowa court is probably not going to assert jurisdiction over a hotel in Sri Lanka when that hotel hasn’t actually marketed itself in Iowa.
If someone from Iowa is injured in Iowa, they naturally would sue in Iowa. Not much controversy there.
If someone from Iowa is injured in Alabama, then Alabama may be the right place for the case to land unless the defendant has a connection in the Hawkeye State. Even if Iowa could assert jurisdiction, forum non conveniens is still a thing, so the tide might roll right back to where the stars fell. Conflict of laws analysis will tilt the decision one way or the other.
But before a lawyer should take any case, s/he must first determine if the case can actually stay in the court where the plaintiff wants it filed. Yes, this is all 2L-level stuff.* But many of us are so focused on the adrenaline of the Super Bowl that we miss sight of the twenty-some weeks leading up to it. We miss sight of that first kickoff in August.
Simply put, we’ve got to make sure the case will even be heard in the first place, so determining proper jurisdiction is critical. And then, once it’s been heard and a judgment won, what comes next?
Enforcement (ie: Getting Paid)
Stay tuned for Part 2.
* Weird lawyering experience #473: I basically live in FRCP 4 (Summons). My practice is all about Civ Pro. I gave a CLE presentation in Paris in 2016; a room full of American lawyers gave me their attention as I described the ins & outs of the Hague Service Convention and its application in France. On my left sat a fellow who recently retired as an associate dean at UMKC Law. On my right sat another associate dean from UMKC Law. When the words “Federal Rules of Civil Procedure” came out of my mouth, it dawned on me that these were the guys who taught me the rules– CivPro 1 and CivPro 2 respectively. No pressure, Aaron. No pressure at all.