Why Does The Defense Want To Remove Your Personal Injury Case To Federal Court?

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Long before you get to the settlement or trial phase of any personal injury lawsuit, there will be a lot of legal motions filed back and forth between the plaintiff's attorney and the attorney for the defense. Both are doing what they should: trying to gain even a slight advantage for his or her client as the case moves on. One of the things that you might not expect is for the defense to ask for the personal injury case to be removed from the state court where you filed it and into a federal one. Learn more about why this happens.

What is a motion for removal?

A motion for removal is a request by the defense to move a personal injury case that has been filed in the state court system to the federal court system. If successful, the federal court takes over, and the venue for the case will probably change. A federal judge will be in charge of the case, and the federal rules of procedure and evidence apply.

Why do personal injury defendants prefer federal court over state court?

Whether it's true or not is a matter of debate, but federal courts are perceived as being "defendant-friendly," particularly when that defendant is a business. This alone can make a business eager to move a case to the federal court whenever it can, but there are other benefits as well:

• Attorneys for large companies often have a greater familiarity with both the federal court and federal rules of procedure than attorneys for individual plaintiffs have.
• The change in venue can make it financially, emotionally, and logistically inconvenient for a plaintiff to travel to and from hearings, which subtly encourages a plaintiff to settle faster.
• The amount of discovery available is more limited under federal rules. This means that cases generally proceed faster, which minimizes bad press for the business. 
• The rules of evidence can differ greatly between state court and federal court. A defendant might be hoping to weaken the plaintiff's case by keeping one or two key documents out of court.
• The federal court is designed to encourage settlements and punishes those who don't accept reasonable offers. If the plaintiff rejects a settlement offer from the defense and takes a case to trial, he or she has to win a judgment that's greater than the proposed offer. If the plaintiff doesn't, Federal Rule of Civil Procedure (FRCP) 68 forces the plaintiff to pay the defendant's legal costs from the point of the offer onward. 

What can be done to stop the removal of a case to the federal level?

The rules that allow the federal court to exert its authority (called "jurisdiction") over a case are fairly complex, so your attorney may look at a number of issues to see if any of them will prevent the case from being removed. That includes everything from the state of residence of each person or business involved in the case to the amount of your claim. For example, keeping your claim under $75,000 may be enough to keep the case out of federal court.

Keep in mind, however, that removal doesn't necessarily spell the doom of your case. Even if it does happen, your attorney is likely to expect the maneuver and plan for it. For more information, consider discussing the situation with an attorney like those at Wolfley & Wolfley, P.S.

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21 March 2016