Presented to the Association of Corporate Counsel, Ontario Chapter

By: Jason H. Wilson and Paul J. LohModerator: Sanjeev Dhawan

May 21, 2015

10. Contingency Fees are Commonplace in the United States

One reason why litigation abounds in the United States is that contingency fees are commonplace.

Indeed, the bulk of plaintiff’s cases are brought on a contingent basis.

Generally, the loser does NOT pay in American litigation.

In many states, there is no limit on pain and suffering damages (unlike the limits in Canada).

Punitive damages—while rare, are still awarded in 6% of all successful plaintiff cases and can be enormous.

“Junk” damage theories maybe accepted by the jury—damages are a jury issue.

8. Judges are less likely to help you in the United States

American judges are less respected, lower paid. Often in state court, judges have to raise money for election and re-election, and have a heavy workload.

Judges are biased against taking issues away from the jury.

7. Jury trials are widely available, dangerous and unpredictable in the United States

Unlike Canada where jury trials are limited to certain types of actions, a right to a jury trial is guaranteed by the Seventh Amendment to the United States Constitution and widely available.

Juries in urban areas are typically pro-plaintiff. In some jurisdictions, juries are very pro-plaintiff.

Jury verdicts are hard to overturn.

Juries are unpredictable and even in a good case, there is perhaps a 10% of a very bad result.

6. Discovery is extensive and expensive in the United States

Depositions are very common and very expensive (although somewhat limited in federal court).

No mandatory document disclosure; so you have to hunt to get the right documents.

Civil discovery is typically very expensive.

5. Plaintiff should carefully choose the forum

State courts are generally more favorable for plaintiffs than federal court.

Urban areas of large states are generally good for plaintiffs.

Odd pockets of pro-plaintiff areas even in conservative states. Canadian company hit for $500 million US in Jackson, Mississippi.

4. Corporate plaintiffs should consider whether they should seek a contingent

fee arrangementBusiness litigation can be done (and is often done) either as a full contingency or a hybrid contingency in the United States.

Increasingly, even large defense law firms will consider a contingency arrangement.

3. Defendants need to focus on cost control at the outset in the United States to avoid

runaway fees

Consider alternative fee arrangements.

Demand a budget so that you can educate yourself as to exactly what the bill will be.

2. Defendants should look for the exit as early as possible in every

American litigation

If you cannot win a case early, settle it.

Early settlement is your best cost-control measure. You will pay more in the United States to settle a case than in Canada.

And our number one tip is:

1. Whenever possible, make sure your transactional lawyer makes Canada, not the

United States, the forum of choice for litigation

The bottom line is the United States is less pro-defendant than Canada.

Forum selection clauses are generally enforced.