International Litigation: The Questions to Ask

In deleting old emails this past weekend I came across one from one of our international litigators to a client that was contemplating pursuing litigation in a tiny emerging market country. This client wanted our lawyers to help it figure out whether to pursue litigation in this small country and also determine what law firm to use there. The email consisted of questions we thought should be asked of the law firms with which we would be communicating.

In re-reading that email today, I realize it provides a good basic list of questions companies should be asking when seeking to decide whether to sue in a foreign country and the lawyers to use when doing so.

Here are those questions:

1. Would a jury or a judge hear a case like ours?

2. Does the prevailing party get its attorneys’ fees? Its costs?

3. Will we know before trial what evidence the other side will likely to present in court? Will the other side have to produce relevant documents? If so, how does that work?

4. When will the other side be required to tell us what witnesses they will be producing in court? Is there any mechanism that will allow us to put the other side’s witnesses under oath to learn before trial what their trial testimony likely will be? If so, what does that look like?

5. What do we need to do to get evidence from the other side? From third parties?

6. Is it possible to get a lawsuit resolved via a motion before trial? If so, when will we have those opportunities and what sort of standards do the courts apply?

7. How likely is it that our judge will be corrupt?

8. Are we likely to encounter (negatively) prejudicial treatment as a foreign company suing a domestic company?

9. If we prevail, how do we collect? Is collection effective? Do we get back any fees and costs incurred in collection? What happens if the other side hides its assets after we sue?

10. Do judges care much about live witnesses or are documents everything/nearly everything?

11. How long from filing until trial?

12. Do cases usually settle before trial? Any idea on the percentage?

13. What do you charge? Can lawyers take cases on a contingency fee basis?

14. Can you please talk about the cases you have handled similar to ours? What happened in those cases?

15. What percent of your practice is litigation?

16. How often do you represent foreign companies in litigation?

17. What do we need to do to make sure we win this case?

Anything we should add to this?

Oh, and for a very good and relatively short analysis of what United States litigation looks like for foreign companies, I would urge you to read A Brief Guide to U.S. Litigation here.