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William C. Altreuter
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Tuesday, October 29, 2013

To a CLE yesterday in the WDNY: "Which Court? State or Federal and Why? Selecting Your Jurisdiction". Judge Pigott was one of the presenters, and unsurprisingly was insightful, but most of it was "State court litigators walk this way, and federal court litigators walk like this," you know? There was a hypothetical about an non-compete case, and everyone was very vanilla, so I said (because I'm an idiot), "Isn't the real difference in the outcome the client wants? If I'm the plaintiff, and I just want the faithless ex-employee to quit it, I'll take it to state court-- but if my client tells me that they want to grind the guy into the dirt, of course I'm going to federal court. My client isn't going to care about posting a bond, and the discovery costs are going to crush the defendant. I really hope someone tells me I'm wrong." Nobody did.

The reasons for this would actually have made for an interesting presentation. Judge Pigott had pointed out earlier that only 4% of litigated cases are heard in federal court (on a national basis) and of course that's because state courts are courts of general jurisdiction. Federal courts are courts of limited jurisdiction. Judge Pigott's advice was to approach cases like a sport: when you are playing a game you don't think, "Hey, I'm following the rules, how come I'm not winning?" and that a lot of people approach litigation as though the procedural rules are what matters, rather than the merits. Of course, that's always been my reason for going to federal court, and sometimes it works-- but the reason it works is because federal court judges have less discretion than do their state court counterparts. Federal court is far more rule-driven, which tends to mean that there are fewer points along the process to halt, or even slow down the process. It grinds forward, inexorable, bloodless. If a client comes to me, as they do, with a TRO, and I see that it's in federal court I know what the conversation with my adversary is going to be like: "Hi. I'm holding some papers in the ABC v. XYZ case. The rules say we should talk, and I'm wondering if you'd like to talk about the path out, or if you just want to talk about scheduling and disclosure issues." If it's someone I don't know, the answer is going to be terse: I have closing papers ready if your client wants to cease and desist, and pay the liquidated damages and attorney fees." Sometimes it will be someone I know, and then what I'll get is more along the lines of, "Sorry, Bill. My client wants to see hair on the walls."

Now, I'm not saying that my client-- a moron, who would have been spared a lot of agony, and even more money-- deserves much sympathy. He signed the non-compete, probably without talking to a lawyer, and maybe without even reading it. He eventually got around to reading it, maybe, and cooked up an argument in his mind about why it shouldn't be enforceable-- frequently this is a sophisticated piece of reasoning that boils down to, "It's not fair." He didn't consult with counsel at that point either, and now he is in the soup. That's not my point. All I'm saying is, the kind of soup, and the temperature of that soup, and the issue of whether this guy is going to be eating soup served out of the back of a church for the rest of his life depends a great deal on forum selection. Somebody should mention that.

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