PODCAST: The Challenge of Engaging US Counsel for Non-US Companies
Selecting trusted US counsel in litigation matters that involve non-US companies can be challenging. Find out how to navigate this complex legal matter with the help of an experienced attorney, Jeff Francis.
John Maher: Due to our globalized interconnected economies, it is not surprising that companies from outside the United States are often named as defendants in litigation in the United States. The first obstacle that a foreign company faces when it is named in litigation in the United States is finding counsel in the US to defend them. Today I'm speaking with Jeffrey Francis of the Law Firm of Pierce Atwood in Boston, Massachusetts, about the challenge of engaging US counsel for non-US companies. Welcome, Jeffrey.
Jeffrey Francis: Thank you, John.
Challenges Presented by Litigation in the US
John: Jeffrey, what are the unique challenges presented by litigation in the United States?
Jeffrey: Compared to litigation in many other foreign jurisdictions, U.S. litigation is extremely expensive, time-consuming, and invasive. The U.S. system is premised on adversarial litigation, involving a tremendous amount of fact investigation and disclosure through the discovery process. For example, a great deal of electronically stored information, computer files, e-mails, and other documents, will need to be preserved and exchanged with the opposing party.
In addition, U.S. litigation centers a great deal on depositions, which involves opposing counsel questioning witnesses for a party as to the relevant facts. These depositions occur outside of the presence of the court, and the depositions are taking an order to preserve testimony either by video, or stenographic means for later use in the litigation, for retrial – for example, for impeachment purposes.
In light of the cost and invasiveness of US litigation, a non-US company needs to identify its objectives early in dealing with the litigation. Will you seek an early settlement or try to negotiate a license? Or will you seek to contest the litigation aggressively, and even bring your own claims, known as counterclaims, against the plaintiff?
Factors to Consider When Choosing US Counsel
John: Okay. What are the factors to consider in choosing US counsel?
Jeffrey: Your company will need to retain litigation counsel. You'll need an attorney admitted to practice in the jurisdiction of the court in which your company has been sued. Choosing US counsel can be a challenge. You should consider whether the attorney has experience with the type of claims contained in the complaint, the attorney's fee structure, the attorney's familiarity with your company's products and technology, the attorney's reputation for success and efficiency. Once you've chosen your litigation counsel, he or she will guide you in evaluating your options and responding to the complaint based on the objectives you have identified.
John: Okay. So you said that choosing counsel can be a challenging, and you want to try to choose a counsel who's obviously experienced in those types of claims and has other factors that are present there that you're trying to identify. But how can you find counsel that meets those criteria?
Jeffrey: First, you can make inquiry of trade groups. Any trade group that your company happens to be a member of, or Chamber of Commerce's – for example, for UK companies this is the British American Chamber of Commerce – you can also speak with in-house counsel for other companies that have had litigation in the US to get their recommendations.
You can also conduct your own research through news articles, online biographies, publications, blogs, videos, or different attorney ranking organizations such as chambers.
Questions to Ask an Attorney Before Hiring US Counsel
John: Okay. What should you ask an attorney in order to evaluate the attorney as a potential litigation counsel for the matter?
Jeffrey: You should request an early preliminary assessment of the case. You should also inquire as to the attorney's proposed strategy for the matter, including for seeking the early resolution of the matter, and for controlling costs if an early resolution is not possible. You should have a full and frank discussion of the attorney's fee structure and a budget for the matter.
A word of warning on budgets in the adversarial process though. It is always hard to furnish an estimate before an attorney really gets his or her feet wet in the litigation matter. The numbers that an attorney will give you, once immersed in the facts and the relevant law, is a more thoughtful number than what we can give you at the outset, having only studied a limited amount of materials. Murphy's law mandates that unexpected contingencies and surprises will arise during the course of even a relatively uncomplicated matter.
And in our view, most litigation matters are complicated. With any litigation, the actions of the opposing party have a strong effect on the fees a party will incur. You should outline, at the outset of the relationship, the structure and detail that you want on any billings on the matter, and you should discuss any possible alternative fee arrangements. You should also discuss, with the attorney, his or her experience working with foreign companies, and US litigation matters.
John: I imagine that that would be very important -- to make sure you have somebody who has worked with foreign companies before, and maybe even specifically with companies in that country, is that correct?
Jeffrey: That's right. You want to make sure that it's someone who will be sensitive to the unique challenges out of which the company is coming, including those legal restraints, which may be in place on a company sending data and information from outside their country into the US in response to discovery requests.
How the Attorney-Client Privilege Comes into Play
John: Finally, what is the attorney-client privilege, and why does it matter in this case?
Jeffrey: The attorney-client privilege protects from disclosure to third parties. For example, as the plaintiff, if your company has been named as a defendant in an action, your communications are with your US counsel. The privilege is a cornerstone of the US adversarial litigation system, because these communications are off-limits. You should be completely candid and open with your counsel, as it affects the underlying dispute, both the flattering and unflattering facts. You should be forthright in identifying witnesses and documents as soon as possible with your counsel. it is only through a candid and frank discussion with your counsel that he or she will be able to form the best strategy to navigate your company out of the litigation it has found itself in.
John: All right, that's really great information. Jeffrey Francis, thanks for speaking with me today.
Jeffrey: Thank you, John.
John: For more information, visit the firm's website at pierceatwood.com or call 617-488-8100.