In the course of increasing globalization and intense economic interdependence between Germany and the USA, legal disputes between German and American companies arise regularly. For German clients, proceedings in the USA often present a particular challenge, not only due to the distance but especially because of fundamental differences in the legal systems.

We represent German plaintiffs and defendants in complex commercial litigation in the USA, working either directly with locally licensed colleagues or with long-standing partners from our US network. A thorough understanding of the specificities of American civil procedure is crucial for litigation success.

From the very beginning of a legal proceeding, the central question arises: Where will the lawsuit be filed and which law will apply?

These questions are by no means trivial, as contracts often contain jurisdiction and choice of law clauses, multiple jurisdictions may be considered in parallel, and strategic considerations play a significant role. The choice of court can have a substantial impact on the duration, cost, and chances of success of proceedings.

In the USA, out-of-court dispute resolutions play a significantly larger role than in Germany. Typical instruments include Mediation (mediation) and Arbitration (Arbitration with binding decision)

Many contracts contain corresponding clauses that can even exclude state court proceedings.

A key difference from the German system is the division of jurisdiction into Federal Courts and State Courts. From a practical standpoint, proceedings before Federal Courts are often more structured and resemble German proceedings more closely. State Courts can vary significantly depending on the state.

Both systems also fundamentally have a Jury trial Possible.

One point surprising to German clients: In the US, a lawsuit is often without precise quantification of the claim filed. Court and legal fees generally do not depend on the amount in dispute. Damages are often only specified in the course of the proceedings.

Probably the biggest difference from German civil procedure lies in the evidence-taking process. In the USA, a significant part of the evidence gathering outside the courtroom instead. The central instruments are:

• Depositionsoral examinations of parties or witnesses under oath
• Interrogatorieswritten questions that must be answered
• Requests for ProductionIssuance of documents
• Subpoenacourt order to produce evidence, including from third parties

Discovery can be very extensive, time-consuming, and costly. However, it is often crucial to the outcome of the proceedings.

Another fundamental difference: The jury decides questions of fact (e.g., what actually happened). The judge oversees the proceedings and applies the law. The jury can also decide on the amount of damages, sometimes with significant financial consequences.

A jury trial is not mandatory but can be requested or waived by the parties.

After the procedure is completed, there is the possibility of appeal and, in certain cases, further review.

However, the requirements and prospects of success are often different from those in the German system and should be considered strategically from an early stage.

A particularly important point for German clients: In the US Contingency Fees widespread. Each party generally bears its own attorney's fees („American Rule“). This means that even if you win, attorney's fees are not automatically reimbursed by the opposing party. At the same time, the opposing party may have significant resources.

Experience shows that German companies often underestimate the specific features of the US legal process. Of particular concern are:

• Extensive disclosure obligationsThere is generally an obligation to disclose relevant documents, even for internal or confidential communications.
• Limited rights to refuse to testifyUnlike in Germany, there are few options to refuse testimony.
• High cost risksIn particular, through extensive discovery procedures
• Time and organizational effortProcesses can extend over long periods and require intensive involvement

From a German perspective, a US civil lawsuit is not an ordinary legal proceeding, but an independent system with its own rules of the game. Crucial for success are early strategic planning, close coordination between German and US lawyers, and, not least, a realistic assessment of costs, risks, and opportunities.

Only in this way can unpleasant surprises be avoided and one's own interests be effectively asserted.

We support German clients in the strategic preparation of US proceedings, coordination with experienced US litigation attorneys, representation before American courts, and the efficient management of complex international disputes.