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– and 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 hit last week.)
- How do you get paid? (The one we’re discussing here.)
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, things are fairly simple– sue in Florida (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 Thailand, or Sri Lanka? What if he booked the trip directly through the resort’s website?
[Elaboration… see last week’s post here.]
In short, 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)
The dicey one. The one for all the marbles. Where the rubber meets the road. Where the buck stops.
Okay, I’ll stop with the goofy clichés. But this is really the most important analysis– how do we turn a judgment into a check that will clear? If a losing defendant’s assets are all in foreign lands,* an American court can’t just reach out and grab the assets like it can here. The plaintiff must ask a court in the foreign country to issue an order forcing the defendant to cough up the cash. That’s a tough sell in a world that views U.S. litigation in such a negative light. Not all is lost, but this is the analysis that should come at the beginning of a case– when the prospective client is sitting in the chair– not at the end.
The foreign court will take, essentially, a two-step approach. Of course, this is a gross oversimplification, but the foreign court will look first at whether the judgment should be recognized. That is, it will ask whether service was properly effected (the easiest part to screw up– and the easiest part to undertake properly with help), whether jurisdiction was proper, whether evidence was appropriately gathered. Procedural stuff with some substance thrown in.
Then, once the judgment is recognized, the foreign court will analyze whether enforcement would violate its own public policy and– if not– whether a mechanism in its own law allows it to compel payment… in all, whether it has the power to enforce.
It all boils down to comity, because there is no treaty in force that compels any court anywhere in the solar system to enforce a U.S. judgment. And what a waste it would be to go all the way down that road to be told “no”.
So, back to our Sri Lanka beachgoer… what of him? Imagine going to all the trouble to hale that resort into an Iowa court, just to have a judge in Sri Lanka giggle at you while he signs the denial. Not a good result.
It might have been better to just sue in Sri Lanka.
* Best case scenario: joint & several liability, with one or more U.S. defendants or foreigners holding U.S. assets.