USA Law and Practice Contributed by: Courtney Scobie, Jack Edwards and Andrea Whitley, Ajamie LLP
US courts are organised by subject matter juris- diction, as follows. • Civil and criminal courts – some states have separate civil and criminal courts. Civil courts handle disputes involving torts, contracts, property, and business disputes. Courts in other states handle both civil and criminal cases. • Family and probate courts – family courts handle divorce, custody, and related matters. Probate courts handle trust, wills, and estate matters. • Administrative courts – administrative courts handle disputes involving government agen- cies, licences, and permits. • Small claims courts – these are designed for quick, informal resolution of disputes involv- ing low-dollar amounts. 1.3 Court Filings and Proceedings Court filings and proceedings are generally open to the public, as there is a strong presumption of public access to the legal system. This transpar- ency helps promote accountability, fairness, and trust in the justice system. In exceptional circumstances, a party may ask to file documents under seal or exclude the public from the courtroom. This typically requires the showing of a compelling reason, such as: • protecting trade secrets, confidential busi- ness information, or personal data; • protecting the identity of vulnerable individu- als such as juveniles or criminal victims; or • for national security reasons. 1.4 Legal Representation in Court Attorneys must be licensed to practice law in the jurisdiction where they are appearing. This typically involves passing a State Bar exam and
meeting various educational and ethical require- ments. Attorneys must also be in good standing with the Bar Association(s) and the court(s) in which they are licensed and admitted. They are also expected to adhere to certain professional conduct and ethical rules. Attorneys who meet the requirements can appear in federal court on behalf of their clients. They have the right of audience, which means they can advocate on behalf of their clients, pre- sent evidence, and make legal arguments. Foreign lawyers can conduct cases in the fed- eral legal system under specific circumstances, primarily when they are admitted pro hac vice ‒ a Latin phrase that means “for this occasion”. This allows out-of-state or foreign lawyers to appear in a particular court for a specific case. 2. Litigation Funding 2.1 Third-Party Litigation Funding Third-party litigation funding is allowed in the USA. Litigants, including individuals and busi- nesses, may seek financial assistance from third-party funders to cover the costs of legal proceedings (eg, attorney’s fees, court expens- es, and other litigation-related costs). Although litigation funding is generally permitted, it is sub- ject to certain restrictions and considerations, such as ethical considerations by each State Bar and also disclosure rules and obligations. It is important to note that litigation funding is a complex area of law that it still developing in the USA and may involve federal and state-level considerations. 2.2 Third-Party Funding: Lawsuits Litigation funding is generally allowed in civil cases such as those involving business dis-
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