A. Litigation Procedures and the Courts

The party commencing a lawsuit (called the plaintiff) must have proper subject matter and personal jurisdiction to avoid having the case initially dismissed. Having subject matter jurisdiction means filing the action in an appropriate court. For example, an ERISA benefits claim must be filed in a federal district court; a case involving significant wages cannot be filed in small-claims court. Speak to a lawyer to be sure you are filing your case in the proper court before starting a lawsuit.

It is also necessary to demonstrate personal (in personam) jurisdiction. Typically, if the person or business being sued (called the defendant) lives or works in the state where the action is filed, or has close ties with that state (e.g., ships goods into or travels to that state to conduct business), then personal jurisdiction may be determined to exist by a judge. It will also be necessary to select the correct venue (the proper county) where the lawsuit should be filed. For example, in a wrongful discharge lawsuit, the proper venue is the county where the plaintiff or defendant resides. Since venue laws vary from state to state, ask your lawyer where the suit should be brought to avoid having the case dismissed.

Counsel Comments:Where applicable, ask your lawyer about the advantages and disadvantages of commencing the lawsuit in either state or federal court. Some experts believe that federal court judges are generally more highly regarded for their legal skills than state judges and that litigants are often able to obtain a trial quicker in federal court. However, if a dispute is with an employer located within your state, you may not be able to file a lawsuit in federal court unless you are asserting a discrimination charge or other matter dealing with federal laws (such as a wage and hour or overtime violation). Conversely, if you are being sued, it may be advantageous to keep the case in a state court to "slow down" its progress.

Before starting any action, it is important to thoroughly analyze whether your case has merit. For example, does the defendant have a strong defense? Will you be able to prove your case? Will the defendant be interested in settling the matter before protracted and expensive litigation occurs? Carefully examine the strengths and weaknesses of any case before starting. Analyze whether the defendant has sufficient assets (such as money in the bank and property). After going through lengthy litigation and expense if the matter is not settled out of court, you don't want to win the case but be unable to collect the award.

Tip:There are investigative companies who, for a fee, can advise you about the defendant's asset picture. Your lawyer can tell you where such companies are located. You may also find them listed in the telephone yellow pages. Always discuss these concerns with your lawyer before the decision to litigate is made.

Courts

A court is a place where trials are held and/or the law is applied. Depending upon one's choice and other factors, a trial may be conducted and decided by a judge only, or a judge and jury. In some appellate courts and the United States Supreme Court, only judges are present to hear arguments and make decisions.

A court can only preside over matters to which it has jurisdiction. Courts of original jurisdiction are the first courts to preside over a matter. A court of appellate jurisdiction is a higher court that reviews cases removed by appeal from a lower court.

Each state has its own court system, which operates separately from the federal court system. There are basically two levels of state courts: trial courts and appellate courts. General trial courts are typically divided into two separate, distinct courts, one to hear criminal matters and one to adjudicate civil matters. Civil trial courts may be further divided depending upon the amount of money or the subject matter at issue. In New York, for example, original jurisdiction small claims courts adjudicate civil matters up to $3,000; the Civil Court adjudicates matters up to $25,000, and the Supreme Court presides over civil matters involving more than $25,000 or other issues. The Family Court hears issues pertaining to support, domestic violence, and problems affecting juveniles, while the Surrogate's Court is involved in matters affecting probate, estates, and wills.

The federal court system is divided into 12 districts or circuits and has jurisdiction over the following:

• When a federal law is at issue such as bankruptcy, copyright and patents, maritime, and postal matters
• When one state is suing another state
• When a person or entity (i.e., a corporation) is suing a person or entity residing in another state and the amount in controversy exceeds $50,000

Within the federal system are separate limited jurisdiction courts that hear matters exclusively pertaining to bankruptcy (U.S. Bankruptcy Court), tax issues (U.S. Tax Court), suits against the federal government (U.S. Court of Claims), and disputes concerning tariffs and customs (U.S. Court of International Trade).

The United States Supreme Court is the country's highest court. It considers cases from the highest courts of each state, decisions of the U.S. Court of Appeals (the highest federal appeals court) and cases where the constitutionality of federal laws comes into play.

The vast majority of lawsuits, including unemployment and worker compensation hearings, originate in state courts. If you are thinking of filing a lawsuit, speak to an employment lawyer or visit the clerk of any local court to determine where the correct place is to start. Each state has its own unique filing, procedural, and jurisdictional requirements, which must be correctly followed so the case will not be dismissed. It is essential to get proper advice from a lawyer before starting any legal process.