Multijurisdiction litigation is a relatively common occurrence in the modern legal world. The phrase evokes images of mass tort litigation—thousands of cases against a limited number of defendants, most perhaps consolidated in a federal multidistrict litigation (MDL) proceeding but with many other cases in numerous state courts. However, multijurisdiction litigation is a much broader phenomenon. There are multijurisdiction disputes involving just one case in state court and a related case in federal court—commercial matters, insurance coverage disputes, even securities cases can span the jurisdictional divide.
Coordination can help judges address many of the challenges created by multijurisdiction litigation. Obviously, litigating similar cases in multiple jurisdictions can strain the resources of the parties and result in unnecessary duplication of effort and considerable inefficiencies. Moreover, the decisions or actions of a single court can significantly affect cases pending in other jurisdictions, sometimes to the detriment of the parties’ interests and the fairness of the overall resolution. For example, when one judge schedules a trial, witnesses involved will be unavailable for deposition or trial in another court during that time. Duplicate attorney attachment for trial is another potential pitfall.
Judges should not surrender their responsibility to manage their own cases and to apply the law of their jurisdictions to legal issues. However, it is wise for judges to consider the impact of their decisions on the broader litigation. Every judge involved in the broader litigation will want the other judges to consider how their decisions impact his or her cases, which is why communication is important. In the end, it is a matter of mutual respect and comity.
Knowing what is going on in the entire litigation also protects a judge from issuing rulings that inadvertently provide one set of attorneys with a strategic advantage. Again, the key to preventing this kind of gamesmanship is not managing one’s own cases in the dark.
It is important for judges in all jurisdictions to be attentive to the issues raised by multijurisdiction litigation, regardless of the scale of the litigation. Judges should make it a practice to require parties to identify related cases in other jurisdictions, at least when there is some reason to suspect that such cases exist. When appropriate, coordination of schedules and discovery among multiple jurisdictions may create efficiencies, allow for a more rational allocation of judicial resources, and eliminate unnecessary duplication. Coordination also promotes and permits constructive collaboration, not only by the judges, but also by counsel working with the judges presiding in the various jurisdictions. In the end, it may also promote a more optimal outcome for the parties than would have resulted from a piecemeal approach.
There may, of course, be impediments to successful coordination. Differences in the laws of multiple jurisdictions can create difficulties. Disputes among the attorneys involved are likely to arise—especially over compensation for their work. Not every judge will be comfortable discussing case management with other judges, even if the discussion is limited to scheduling. All of these topics are addressed in this resource.
Next section: Communication