United States: Litigation Dispute Resolution Comparative Guide

1 Legal framework

1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?

There are two court systems in the United States, federal and state. The courts apply the common law, as well as state and federal statutory law. Each system has its own trial, intermediate and appellate courts of last resort. While state courts are courts of general jurisdiction and will entertain most civil actions seeking equitable or damages remedies, there are constitutional limitations on federal court jurisdiction. Federal courts hear cases under either:

• diversity of citizenship jurisdiction, where the court applies the law of the jurisdiction where the federal court sits; or
• federal question jurisdiction.

1.2 What rules govern litigation in your jurisdiction?

The procedural rules applicable to civil suits in federal courts are supplied by the Federal Rules of Civil Procedure. The Federal Rules of Evidence govern the introduction of evidence at civil and criminal trials. State courts have comparable rules.

1.3 Do any special regimes apply to specific claims?

In the area of administrative law, there is the requirement of exhaustion of administrative remedies prior to bringing suit: in some instances, the lawsuit challenging agency action must by statute be brought in federal district court; while in others the agency ruling is appealed directly to a federal court of appeals for review.

The US Court of Appeals for the Federal Circuit, one of 13 federal appellate courts, has a unique appellate docket that includes:

• international trade;
• government contracts;
• patents and trademarks;
• certain money claims against the US government;
• federal personnel;
• veterans' benefits; and
• public safety officers' benefits claims.

Appeals to the court come from:

• federal district courts;
• the US Court of Federal Claims;
• the US Court of International Trade; and
• the US Court of Appeals for Veterans Claims.

The court also reviews certain administrative agency decisions.

Federal courts have original jurisdiction over admiralty and maritime suits pursuant to 28 USC § 1333. Admiralty and maritime lawsuits have their own set of procedural rules.

1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?

The United States has acceded to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, codified at 9 USC §§ 201–208, one of the key instruments in international arbitration.

The United States has also acceded to the 1975 Inter-American Convention on International Arbitration, codified at 9 USC §§ 201–208.

2 Judicial structure

2.1 What courts exist in your jurisdiction and how are they structured?

There are two court systems in the United States, federal and state. In the federal system, Article III of the US Constitution:

• mandates that there be one Supreme Court;
• grants life tenure to the justices; and
• defines the outer boundaries of the court's jurisdiction.

The Constitution authorised Congress to establish a system of lower courts. Currently, there are 94 federal district trial courts and 13 federal courts of appeals that sit below the Supreme Court. Federal judges are appointed by the president and confirmed by the Senate. They have lifetime appointments. State courts similarly have trial courts, intermediate appellate courts and a court of last appeal. State court judges are selected in a variety of ways, including by appointment and election. They may be appointed for life or for a given number of years.

2.2 What specialist courts or tribunals exist in your jurisdiction?

In some states, specialised courts handle commercial litigation. In New York, this is handled by the Commercial Division of the Supreme Court (trial court); in Delaware, by the Court of Chancery (which adjudicates equitable claims) and the Superior Court (which hears civil monetary claims and includes a Complex Commercial Litigation Division). States also often have specialised courts that handle probate matters, cases concerning juveniles and family matters such as divorce and custody.

The US Court of Appeals for the Federal Circuit, one of 13 federal appellate courts, has a unique appellate docket that includes:

• international trade;
• government contracts;
• patents and trademarks;
• certain money claims against the US government; and
• federal personnel, veterans' benefits and public safety officers' benefits claims.

Appeals to the court come from:

• federal district courts;
• the US Court of Federal Claims;
• the US Court of International Trade; and
• the US Court of Appeals for Veterans Claims.

The court also reviews certain administrative agency decisions

3 Pre-litigation

3.1 What formalities apply before litigation can be commenced in your jurisdiction?

The only formalities are the serving and filing with the court of the summons and complaint, and the defendant's response, which may be either an answer to the complaint or a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Most causes of action have a statute of limitations that must be met.

3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?

Parties that reasonably anticipate litigation must, under Rule 37(e) of the Federal Rules of Civil Procedure as well as general spoliation law, issue preservation orders, meaning that they must take steps to identify and preserve documents and electronically stored information that are relevant to or may lead to the discovery of information relevant to the potential claims or defences. Failure to do so may result in severe penalties, such as adverse inference instructions, evidence preclusion or, in extreme situations, dismissal of the action (see Fujitsu Ltd v Fed Express Corp, 247 F 3d 423, 436 (2d Cir 2001) ("The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation")).

3.3 What other factors should a party consider before commencing litigation in your jurisdiction?

Civil actions have no predictable timetable and the majority of civil actions brought in US courts are resolved before trial. Litigation can be time consuming and costly. If the motion to dismiss is denied in whole or in part, the case then proceeds to the discovery phase, which can be complex and lengthy, depending on the nature of the litigation; and contentious as well.

4 Commencing litigation

4.1 What rules on limitations periods apply in your jurisdiction?

Statutes of limitation vary with the cause of action alleged and the jurisdiction. For example, in the District of Columbia, the statute of limitations for breach of an express or implied contract is three years and it generally begins to run at the time of the breach (DC Code § 12–301(7); Wright v Howard Univ, 60 A 3d 749, 751 (DC 2013)). On the other hand, in New York, the statute of limitations for breach of contract claims is six years and begins to run when the alleged breach occurs (NY CPLR 213(2); Hahn Auto Warehouse v Am Zurich Ins 967 NE 2d 1187, 1190 (NY 2012)).

With respect to federal law, 28 USC § 1658(a) provides that, except as otherwise provided by law, "a civil action arising under an Act of Congress enacted after [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues". Nonetheless, many federal statutes contain their own statutes of limitation and repose.

The Federal Arbitration Act does not contain a statute of limitations and most states do not have a specific statute addressing limitation periods in the context of arbitrations. The parties are free to incorporate time limits into their arbitration agreements.

4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?

State courts are courts of general jurisdiction. Federal courts, however, are courts of limited jurisdiction. They hear cases either under diversity of citizenship or federal question jurisdiction. The diversity statute, 28 USC § 1332, provides that district courts have jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and the parties are diverse. The statute demands ‘complete diversity', which is present only when no party on one side of a dispute shares citizenship in the same state with any party on the other side. In diversity cases, federal courts apply the law of the state in which the federal court sits, including that state's choice of law rules.

When a federal court's subject-matter jurisdiction is based on a question of federal law, rather than diversity grounds, courts apply the applicable federal statute (if there is one) or federal common law.

In most states, there must also be personal jurisdiction – that is, the non-resident party must have ‘minimum contacts' with the state to satisfy due process (see Daimler AG v Bauman, 571 US 117 (2014)). In Daimler, the Supreme Court held that when the defendant is a corporation, general personal jurisdiction exists only in a forum where the corporation is ‘at home' (id at 137). This generally means the corporation's state of incorporation and the state in which the corporation maintains its principal place of business.

Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure gives federal district courts power to assert personal jurisdiction over a defendant to the same extent that a state court in which the federal district court is located may assert that power. Accordingly, the same limits on personal jurisdiction generally apply in federal court.

4.3 Are class actions permitted in your jurisdiction?

Class actions in federal court are governed by Rule 23(a) of the Federal Rules of Civil Procedure. One or more members of a class may sue or be sued as representative parties on behalf of all members of a putative class only if:

• the class is so numerous that joinder of all members is impracticable;
• there are questions of law or fact common to the class;
• the claims or defences of the representative parties are typical of the claims or defences of the class; and
• the representative parties will fairly and adequately protect the interests of the class.

If the class seeks money damages, federal courts also require that:

• common questions of law or fact predominate over any questions concerning individual members; and
• the class action be superior to other available methods for fairly and efficiently adjudicating the matter (see Rule 23(b)(3) of the Federal Rules of Civil Procedure).

4.4 What are the formal requirements for commencing litigation?

The only formal requirements are the service of the summons and complaint. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, the complaint must set out a "short and plain statement" of factual allegations that, if accepted as true, would provide a basis for relief. A party alleging fraud must meet a heightened pleading standard (see Rule 9(b of the Federal Rules of Civil Procedure).

4.5 What are the procedural and substantive requirements for commencing litigation?

Under the Federal Rules of Civil Procedure (and similar state procedural rules), once the summons and complaint have been properly served and filed, the defendant may file an answer or delay the filing of an answer in favour of a motion to dismiss, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. The motion to dismiss takes the allegations of the complaint as true and argues that even assuming the facts the case must be dismissed for one of seven reasons, including lack of jurisdiction and failure to state a claim. Time limits are associated with certain of these motions. If the motion to dismiss is denied in part or in full, the case proceeds to the discovery phase, which can be quite complex and lengthy, depending on the nature of the litigation.

4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?

Rule 64 of the Federal Rules of Civil Procedure states: "At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies."

Most interim measures are obtained by application to the presiding judge. They are generally granted at an early stage in the proceedings to preserve the status quo or prevent the dissipation of assets or evidence that could render an award ineffectual. For example, interim attachment orders are issued to prevent a party from dissipating, transferring or otherwise disposing of a debt or property to ensure satisfaction of any final judgment entered in the case. Other such orders include:

• garnishment;
• receivership;
• replevin; and
• liens.

Injunctive relief, in the form of temporary restraining orders and preliminary injunctions, is also available if a showing is made that:

• absent such relief, irreparable harm will occur;
• there is a likelihood of success on the merits; and
• the public interest favours such relief (see Roe v DOD, 947 F 3d 207 (4th Cir 2020)).

4.7 Under what circumstances must security for costs be provided?

There is no specific provision in the federal rules addressing security for costs, except when injunctive relief is sought, pursuant to Rule 65 of the Federal Rules of Civil Procedure. Typically, federal courts, by local rule or on a discretionary case-by-case basis, follow the forum state's practice regarding security for costs, particularly in diversity cases (see Sescock v D1 Kennels, 2021 WL 76713, at *1 (D Nev 8 January 2021), noting that "[w]hen suit is brought under a federal statute, state provisions requiring security for costs or expenses clearly are inapplicable"; but "the court may apply its own rules or state practice to require security for costs as a discretionary matter, taking into account the policy of the underlying federal statute, the defendant's ability to recover costs from an out-of-state plaintiff if the defendant prevails, the plaintiff's solvency, and any other pertinent factors" (alteration in original) (quoting Wells Fargo Bank v SFR Invs Pool 1, 257 F Supp 3d 1110, 1111 (D Nev 2017)).

5 Disclosure

5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?

Rule 26 of the Federal Rules of Civil Procedure provides the framework for civil disclosure and discovery. Rule 26(a), for example, addresses parties' mandatory disclosures, including initial disclosures, expert disclosures and other pre-trial disclosures.

5.2 What rules on third-party disclosure apply in your jurisdiction?

The Public Access to Court Electronic Records System provides access to the updated dockets and records of all federal courts. Many states have similar electronic systems permitting public access to court dockets and records.

5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?

A party can withhold documents protected by a recognised common law privilege, such as attorney-client privilege, which extends to oral and written communications between attorney and client made in confidence and for the purpose of obtaining legal advice.

The work product doctrine (codified by Rule 26(b) of the Federal Rules of Civil Procedure) affords a qualified privilege to any materials prepared by an attorney or at the direction of an attorney in anticipation of litigation or trial. A party, however, may purposefully or inadvertently waive privilege or work product protections by voluntarily disclosing the information to a third party or by placing a document ‘at issue' by relying on it in support of a claim or defence.

Whether privilege protects an in-house lawyer's communications depends on the predominant purpose of the communication. If the objective is to obtain legal advice, then the communication is likely privileged if it is confidential and between the lawyer and client. However, if the lawyer is providing business advice, then the communication is not privileged. Courts distinguish between business and legal communications by looking at the content of the communications.

5.4 How have technological advances affected the disclosure process in your jurisdiction?

Law firms and corporate legal departments identify, collect and produce electronically stored information (ESI) in response to document requests in a lawsuit or an investigation. ESI includes, but is not limited to, emails, documents, presentations, databases, voicemail, audio and video files, social media and websites. The process can be very complex and expensive. After data is identified, potentially relevant documents (including both electronic and hard-copy materials) are placed under a legal hold; they cannot be modified, deleted, erased or otherwise destroyed. Identifying and collecting documents is a complex matter often carried out by outside e-discovery consultants.

In addition, the COVID-19 pandemic has altered the legal landscape through remote depositions, hearings and arguments.

5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?

Counsel should be aware of the perils of failing to properly preserve documents and other evidence (see Rule 37 of the Federal Rules of Civil Procedure; Charlestown Capital Advisors v Acero Junction, Inc, 337 FRD 47 (SDNY 2020)). Counsel must issue a timely written litigation hold as soon as it is aware of impending or existing litigation. The litigation hold must be distributed to all relevant individuals and must periodically be reviewed and updated.

A party risks spoliation sanctions if it fails to:

• issue a timely litigation hold;
• ensure that its electronic and paper records are preserved;
• stop the automatic deletion of relevant ESI under current document retention or records management policies; and
• preserve back-up tapes if they are necessary and the only source of relevant information.

Sanctions can include adverse inference instructions and terminating sanctions, as well as attorneys' fees and costs.

6 Evidence

6.1 What types of evidence are permissible in your jurisdiction?

The rules of evidence contemplate the admission of relevant evidence, but the exclusion of irrelevant and potentially prejudicial evidence (see Rules 401, 402 and 403 of the Federal Rules of Evidence).

Prior to trial, the parties engage in discovery, which includes depositions and written submissions. Depositions may be used at trial or in preparation for trial, and may be in the form of a written transcript or a videotape. Both sides have the right to be present during depositions (see Rule 32 of the Federal Rules of Civil Procedure).

6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?

The parties to an action generally retain their own experts. The identity of the experts must be disclosed prior to trial and at the time of disclosure the expert must provide a written report. Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, the report must include:

• the opinions that the expert intends to offer at trial;
• the facts or data considered by the expert in forming the opinion;
• summary exhibits supporting the expert's opinion;
• the qualifications of the expert, including a list of all publications offered in the preceding 10 years;
• a list of all cases in which the expert has testified in the preceding four years; and
• a statement addressing the compensation that the expert is receiving in exchange for his or her testimony.

Pursuant to Rule 26(b)(4) of the Federal Rules of Civil Procedure, experts are generally subject to cross-examination during deposition and trial. During a deposition, the focus is on the opinions in the expert's written report. Written reports are generally inadmissible; live testimony is the norm.

6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?

Rule 901 of the Rules of Evidence requires that evidence be authenticated before it can be presented at trial. Rule 26(b)(5)(A)(I) of the Federal Rule of Civil Procedure requires a party withholding documents under a claim of privilege to describe the nature of the documents in a way that "will enable other parties to assess the claim" of privilege. Producing a ‘privilege log' is an invariably time-consuming and contentious procedure, often requiring recourse to the court to resolve disputes via a motion to compel.

7 Court proceedings

7.1 What case management powers do the courts have in your jurisdiction?

Civil proceedings are initially brought, and litigated to judgment or settlement, in the trial courts. Federal district court judges and state trial court judges manage the trial proceedings while applying rules of civil procedure and evidence.

7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

Ordinarily, hearings in federal and state courts are open to the public on a first come, first served basis. Certain proceedings nonetheless are closed to the public and to the media. For example, only a witness, attorneys for the government and a court reporter may be present when a grand jury sits; jury deliberations and attorney-client meetings also occur in private. Proceedings that deal with classified information, trade secrets and ongoing investigations are often closed. Judges may also meet privately with the attorneys in chambers.

7.3 How is the applicable law determined? What happens in the event of a conflict of laws?

In diversity cases, federal courts apply the choice of law rules of the forum state (see Klaxon Co v Stentor Elec Mfg Co, 313 US 487 (1941)). When a conflict of law problem exists – for example, in a tort case – courts generally follow the Restatement (Second) of Conflict of Law's ‘most significant relationship' test.

In contract cases, including arbitration agreements, the parties can incorporate a choice of law provision to provide certainty as to the applicable governing law. State and federal courts routinely apply the parties' choice of law provision, even where the law is that of a foreign jurisdiction. Exceptions to this general rule may apply where:

• the law chosen has no substantial relationship to the parties or the transaction; and
• there is no other reasonable basis for the choice or the chosen law conflicts with fundamental public policy (Restatement (Second) of Conflict of Laws § 187(2)).

7.4 What rules apply to the joinder of third parties?

The Federal Rules of Civil Procedure provide for mandatory and permissive joinder of third parties. Rule 19(a), entitled "Joinder of Persons Needed for Just Adjudication", provides, in relevant part:

Rule 20(a) of the Federal Rules of Civil Procedure, which governs permissive joinder of parties, requires a plaintiff to demonstrate two prerequisites in order to permissively join a party:

• The claims against the party to be joined must "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences"; and
• There must be some question of law or fact common to all parties to be joined.

7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?

The general stages of litigation include the following:

• Initial pleadings: Heightened pleading requirements apply to the complaint, the facts of which must be plausible. The plaintiff cannot simply rely on conclusions of law.
• Motions to dismiss: The motion to dismiss takes the well-pleaded facts as true and argues that even on those facts the plaintiff fails to state a viable claim.
• Discovery: This usually begins, pursuant to court order, after initial pleadings have been filed and any motions to dismiss have been ruled upon. Discovery can be costly, time consuming, contentious and complex, depending on the nature of the case. In large commercial disputes, courts may establish discovery protocols, particularly where large-scale electronic discovery is at issue (see Rules 16(b)(3)(B) and 26(f)(3)(C) of the Federal Rules of Civil Procedure).
• Summary judgment: Motions for summary judgment are granted only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law (see Rule 56 of the Federal Rules of Civil Procedure). A motion for summary judgment can be filed at any time prior to 30 days before trial, but is typically filed after the close of discovery. Most courts require the parties to submit statements of uncontested facts.
• Trial: A court can grant a motion for judgment as a matter of law before the case is submitted to the jury, if no reasonable jury would have a legally sufficient evidentiary basis to find for the party on a particular issue (see Rule 50 of the Federal Rules of Civil Procedure). A trial court can also grant a new trial on all or some of the issues determined by either the judge or jury during trial (see Rule 59 of the Federal Rules of Civil Procedure).

7.6 What is the typical timeframe for the court proceedings?

There is no typical timeframe for court proceedings.

8 Judgment and remedies

8.1 What types of judgments, orders and other remedies are available in your jurisdiction?

Remedies ordered in a final judgment may include:

• declaratory relief;
• damages, both compensatory and punitive (and liquidated damages where appropriate); and
• equitable remedies such as injunctive relief and specific performance.

9 Appeals

9.1 On what grounds may a judgment be appealed in your jurisdiction?

In the federal court system, appeals are taken as of right from entry of a final judgment (see 28 § USC 1291). A final judgment is a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment (Catlin v United States, 324 US 229, 233 (1945)). "An appeal from a final judgment preserves all prior orders of the court that are intertwined with the final judgment, even when those prior orders are not specifically listed in the notice of appeal" (Edwards v 4JLJ, LLC, 976 F 3d 463, 466 (5th Cir 21 September 2020) (quoting Armour v Knowles, 512 F 3d 147, 156 (5th Cir 2020) (per curiam)).

Non-final rulings may be appealed, on an interlocutory basis, where permitted by statute, court precedent or the rules of appellate procedure. For example, 28 USC § 1292(a)(1) permits appeals of non-final orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions". Similarly, 28 USC § 1292(b) allows interlocutory appeals of court orders when the court believes that:

• the order involves a controlling question of law as to which there is substantial ground for difference of opinion; and
• an immediate appeal may materially advance the ultimate termination of the litigation.

An agency decision must often be appealed within the agency itself, when such an appeal is permitted, and then may be directly appealed to an appellate court.

9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?

In the federal system, appeals are taken as of right when a final judgment has been entered. Certain interlocutory orders – such as orders granting, modifying or dissolving injunctions – may also be taken as of right. Pursuant to 28 USC § 1292(b), appellate courts have discretionary authority to review interlocutory issues certified for appeal by a district court. The district court must issue a ruling in writing opining that:

• at issue is a controlling question of law as to which there is substantial ground for difference of opinion; and
• an immediate appeal may materially advance the ultimate termination of the litigation.

To prevent irreparable injury or maintain the status quo pending appeal, the party must generally file a motion for a stay pending appeal. The motion must initially be made in the trial court. If a stay is denied, then Rule 8(a)(2) of the Federal Rules of Appellate Procedure authorises the appellate court to grant a stay pending appeal. The court's determination is governed by four factors:

• whether the movant has made a strong showing of likelihood of success on the merits;
• whether the movant will be irreparably injured absent a stay;
• whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
• where the public interest lies.

(See Nken v Holder, 556 US 418, 434 (2009)).

It is generally accepted that, with respect to a case arising in the federal system, a party taking an appeal from the district court is entitled to a stay of a money judgment as a matter of right if it posts a bond in accordance with Rules 62(d) and 73(d) of the Federal Rules of Civil Procedure (see 11 Charles A Wright and Arthur R Miller, Federal Practice and Procedure § 2905 (3d ed 2020); 20 James W Moore et al, Moore's Federal Practice § 308 App 100 (2020); James W Moore, 12 Moore's Federal Practice § 62.03 (2020)).

9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?

While legal issues presented on appeal are subject to de novo review, narrower standards apply when the trial court has exercised its discretion or when appeals are taken from agency rulings. The narrower the standard of review (eg, abuse of discretion, substantial evidence, arbitrary and capricious), the less likely that the appealing party (appellant or petitioner) will prevail. Review on appeal of factual determinations is pursuant to the ‘clearly erroneous' standard, which is exceptionally narrow; courts of appeals do not primarily sit to review factual determinations.

Appeals are heard (whether in state or federal court) by a panel of judges that renders a decision after briefing and oral argument. Where the issues are important, and particularly where there is a dissent from the majority holding, appellate courts will entertain petitions for full court review.

The US Supreme Court's docket is almost entirely discretionary. Petitions for writs of certiorari and oppositions to the granting of those writs, together with amicus briefs in support or in opposition to granting certiorari, are filed with the clerk of the court and distributed to the justices for consideration and conference. When certiorari is granted, which is relatively rare, the case is scheduled for briefing and oral argument before the full court.

10 Enforcement

10.1 How are domestic judgments enforced in your jurisdiction?

State and federal courts have established rules for enforcing final monetary judgments. Rule 69 of the Federal Rules of Civil Procedure provides that a money judgment is enforced by a writ of execution unless the court directs otherwise. Further, "[t]he procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies".

The principal methods of enforcing a final monetary judgment include:

• garnishing the debtor's wages;
• garnishing the debtor's bank account; and
• seizing the debtor's personal property or real estate.

(See generally 28 USC § 3202.)

10.2 How are foreign judgments enforced in your jurisdiction?

A plaintiff seeking to enforce a foreign judgment within the United States must, as a prerequisite to enforcement, first have the judgment recognised by a domestic court. Recognition of a foreign judgment means that "the forum court accepts the determination of legal rights and obligations made by the rendering court in the foreign country" (2005 Recognition of Act § 4 cmt 2). All states, whether by common law or statute, have both mandatory and discretionary grounds for non-recognition. These grounds, usually based on state statutory law, can be asserted:

• as affirmative defences in an action on the judgment; or
• by counterclaim or cross-claim in a pending proceeding between the parties.

The United States does not have a uniform federal law governing the recognition and enforcement of foreign judgments and is not a party to any treaty that deals with this subject. The recognition and subsequent enforcement of foreign judgments in the United States, therefore, are primarily matters of state statutory and common law. The statutory law of the United States derives from two model recognition acts promulgated by the National Conference of Commissioners on Uniform State Laws; in the absence of a statute, general principles of comity apply (see Hilton v Guyot, 159 US 113 (1895)).

10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?

No answer submitted for this question.

11 Costs, fees and funding

11.1 What costs and fees are incurred when litigating in your jurisdiction?

In federal courts, 28 USC § 1920 permits a judge or clerk of the court to tax costs, including fees of the clerk and marshal, fees for transcripts, docket fees, fees of court-appointed experts and interpreters, witness fees and other general administrative costs. Witness fees are limited to $40 per day (see 28 USC § 1821).

28 USC §1332(b) provides that a court may impose costs on a plaintiff that brings an action in Federal Court under diversity jurisdiction, but is "finally adjudged to be entitled to recover less than the sum or value of $75,000".

In addition, fee-shifting statutes – such as the Fair Labor Standards Act and statutes governing civil rights, antitrust and consumer protection – may allow a prevailing plaintiff to recover litigation costs (and attorneys' fees).

11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Contingency and conditional fee arrangements are permitted, as long as the arrangement complies with the particular jurisdiction's rules of professional conduct.

11.3 Is third-party funding permitted in your jurisdiction?

Third-party funding is permitted and has become relatively common in US litigation and arbitration. Financing for a party's legal representation is often provided by a hedge fund or insurance company or bank, which may in turn acquire a percentage of the proceeds recovered or, if the funded party is a defendant, an agreed-upon periodic payment.

11.4 What other strategies should parties consider to mitigate the costs of litigation?

Traditional ways of attempting to mitigate litigation costs include arbitration clauses and indemnity and insurance procurement clauses. They must be clear and unambiguous and in accordance with applicable law.

When a party initiates litigation despite having an arbitration clause in its agreement, the counterparty may move to stay the litigation pursuant to Section 3 of the Federal Arbitration Act and to compel arbitration under Section 4 of the act (see Katz v Cellco P'ship, 794 F 3d 341, 346 (2d Cir 2015)).

12 Trends and predictions

12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The COVID-19 pandemic and resultant social distancing guidelines from health officials have caused a reassessment of the need for and advisability of in-person hearings. US courts and arbitral institutions have responded by issuing guidance on the use of remote platforms for virtual hearings.

Trends are for:

• increased litigation in 2021–2022 as a result of employer-employee issues (eg, shutdown orders, furloughs, lay-offs, and bankruptcies);
• breach of contract suits stemming from the pandemic;
• a general increase in commercial litigation, especially debt recovery matters and property eviction; and
• cybersecurity and data protection issues.

13 Tips and traps

13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?

Litigation is increasingly costly, in part because of the ever-increasing electronically stored information that the parties must collect and preserve. Counsel for a defendant should consider:

• the potential exposure of the defendant;
• the applicable insurance coverage; and
• the effect of a lawsuit on the defendant's business, in terms of both reputation and business disruption.

Potential plaintiffs must consider:

• what court should hear the case, state or federal; and
• whether the defendant will attempt to remove the case from state to federal court.

Parties cannot, by agreement, confer jurisdiction on a federal court. Rather, the plaintiff bears the burden of establishing jurisdiction (eg, see Vulupala v Barr, 438 F Supp 3d 93, 97 (DDC 2020)). If the only ground for jurisdiction is the diversity of citizenship statute, the plaintiff should be certain the statutory requirements, as well as the personal jurisdiction requirements, are met.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.