Introducing Foreign Clients to U.S. Civil Litigation

• Author: Donald Francis Donovan and Jeffrey S. Jacobson
• Pages: 43-49

43

A surprised client is an u nhappy client. For the foreign client, the U.S. legal sys-

tem can be fu ll of surprises. It is t herefore essential to provide foreig n clients with

a basic overview of the U.S. liti gation system at the outset—not only to mi nimize

unhappy sur prises for the client later on, but also to increase client cooperation

on critical aspects of the case. For example, a client used to the French system,

where the only documents customarily disclosed are those offered to support

one’s case at trial, wi ll not easily understand t he scope of effort required by a U.S.

document request. A U.S. law yer that tran smits such a request to a foreign cl ient

without prior education wi ll usually get the sort of palt ry response that leads the

lawyer to a hurried rer eading of the rules on di scovery sanct ions.

But what to cover in this educational talk w ith the client? Experience has

shown there are five features of U.S. litigation that most require translation:

(1) the practice of wide-rang ing discovery of paper and especia lly electronic docu-

ments, (2) the prevalence of jury trials, (3) the virtual absence of fee shifting

(except in limited circumstances in the electronic discovery context), (4) the pre-

dominance of sett lement as the primary means to resolve lawsuits, and (5) the

availability of class action litigation. In t he discussion that follows regard ing the

essentials to cover with a hypothetica l client, each of these features will be

addressed in t urn.

HWIDE-RANGING DISCOVERY

The major legal systems of the world all generally provide the part ies some

opportunity to obtain a nd review documents and information in the possession

of opposing parties. The United States, however, stands a lone in the world in the

CHAPTER 5

Introducing Foreign Clients to

U.S.Civil Litigation

Donald Francis Donovan and Jeffrey S. Jacobson

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