In-House Counsel, Litigators, Practice Pointers

Inside Straight: The Global Perspective That Lawyers Lack

Mark Herrmann has some advice for in-house counsel on thinking globally, instead of locally, when it comes to international litigation.

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You really don’t want to be sued in a corrupt, backwater swamp.

No, no! I don’t mean Louisiana! I mean a truly corrupt backwater swamp like, say, Sudan.

(I pick Sudan because it’s subject to sanctions by most first-world countries, so I don’t have to worry about someday being dragged before a Sudanese judge who isn’t tickled by my having called his country a “corrupt, backwater swamp.” I may well pay a price for having tarred Louisiana with that label, but my opening two sentences just wouldn’t have been funny if I hadn’t named a specific state. I’ll have to hope that judges in Louisiana have a sense of humor.)

You get sued in Sudan. You hire Sudanese counsel. You probe him about Sudanese substantive law, Sudanese procedure, and whether the Sudanese judicial system can be trusted. He answers your questions about corruption with vague assurances about how he’s a pretty well-connected lawyer, and most judges aren’t too bad, and corruption isn’t quite as rampant as outsiders seem to think. Then he goes on to explaining how he’ll defend your lawsuit.

That advice may be okay as far as it goes, but it’s missing the global perspective. Here’s one place where in-house lawyers — and sophisticated outside counsel — can add real value in litigation….

I’ve previously written that in-house lawyers can add value by insisting that contracts with people in corrupt places contain forum selection clauses that will move litigation out of the swamp and to some civilized place. I stand by that advice. But, for purposes of today’s post, I’m assuming that your preventive efforts failed, and you’ve properly been sued in a swamp.

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Here’s what your Sudanese outside counsel won’t think to tell you, but it may be the key to defending your client: If at all possible, sue your Sudanese opponent in a U.S. court.

Your Sudanese counsel won’t mention this because (1) his perspective is local; he thinks about defending cases in Sudan, not defending international clients on a global scale, and (2) it’s against his self-interest to suggest that you pry the litigation out of Sudan and set it down elsewhere. (Good lawyers, of course, often give advice that cuts against their own economic self-interest, but Sudanese lawyers may not be quite so noble.) The only folks who typically know that “when you’re sued in a swamp, you should countersue your opponent elsewhere” are sophisticated lawyers at big international firms and in-house lawyers who are thinking globally. Everyone else is trapped in their own little, too-narrow, world.

Suing your Sudanese opponent in a U.S. court may be the best way to obtain the negotiating leverage needed to resolve your Sudanese case. You’ll have moved your opponent off of his home turf and into a legal system that is foreign to him, generally incorruptible, and generally fair. That’s an improvement.

But it may get better than that: If your U.S. case moves to judgment, and if your American judge and jury are offended by Sudanese business tactics, then you may have an American judgment in your favor, which will put serious pressure on your Sudanese opponent.

Your client of course won’t always have the ability to pry cases out of swamps and into fine, noble jurisdictions, such as Louisiana. (What can I say? I’m trying to rehabilitate my tarnished image in that great state.) But consider yourself duty-bound to consider this tactic and to implement it if reasonably possible. Counter-suing in the U.S. is a good strategy; it may be your only route to salvation when sued in a bad place; and it’s one area where in-house lawyers have a global perspective that can add real value.

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Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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