Litigating From A Distant State

People find themselves defending themselves in a forum across the country for a variety of reasons. Families split up and divorce or custody cases will most likely still be heard in the state in which both parties originally resided. Interstate commerce leads to lawsuits between parties from different states when things go wrong in the business transaction. A holiday or business trip to a resort location leaves a nasty aftertaste in the form of a DUI charge or other criminal charge. This is by no means an exhaustive list.

The question is, What do you do when you find yourself on the wrong end of such a lawsuit, when you are in one state and the case or charge has been filed in another and distant state, maybe even in a hard-to-get-to part of Idaho?

The first step is to find and retain an attorney where the case is. It usually won’t do much good if you are in Florida to consult an attorney there about a case you have to defend in Idaho. The situation tends to work that way in reverse too. I occasionally get calls from local residents who suddenly have a problem in Texas, Boise or some other distant state, and about all I can tell them is to get a lawyer in that location. (Yes, to many residents of North Idaho, it’s “the State of Boise.” And it’s too far from here for it to be economical to handle from here a case there, at least for most cases.)

Be prepared to have to make at least one trip here for your case. If your case goes to trial you will need to be here. Your lawyer cannot testify for you. He or she can direct and shape your testimony with questions and preparation, cross-examine the other side’s witnesses and argue your case, but you will have to testify to your individual actions and personal observations. You may also have to appear for other hearings, for example in civil preliminary hearings or temporary order hearings, which tend to require testimony. Some hearings do not call for testimony, and can be handled by your lawyer without your physical presence. However, some judges want the parties to be present for all hearings of any sort on the theory that having everyone present in the same place at the same time creates a settlement opportunity. Most criminal cases will require the Defendant to be present for all scheduled hearings, although sometimes an excusal can be obtained. Of course, if your civil case settles, no further court is likely to be necessary. On the criminal side there are formalities to plea agreements in most cases that will require the Defendant’s presence at least that one (more) time before the court.

Internet access facilitates preparation of a lot of the paperwork these days. Drafts and revisions can be emailed back and forth. The court here will accept faxes of notarized signatures, and no one has complained yet about notarized signatures sent by email attachment.

Notwithstanding all of the foregoing about the likelihood of having to appear in person for trial or other hearings in court, occasionally the circumstances provide a strong basis to dismiss the case from the forum state on jurisdictional grounds. The good news there is that if you win that motion, you may never have to appear in court for the case. The bad news is that win or lose that jurisdictional motion, it may have been just as expensive to get to that point as the case would have been skipping over that issue and proceeding to trial.

A word of caution. Virtually all of the above is highly factual from case to case in terms of what courts will do. It should be taken as an overview or introduction to the issue. In any given case a lawyer should be consulted.