Have we ever wondered why, in India we think long and hard before taking a legal recourse while in the US most people do not even think twice before suing?

Interestingly, the reason may be related to how litigation is set up in each country.

Let me highlight a few. Even as a layman, these differences are important to know in general terms.

1. Contingency Fee –

In the US, the default fee charged by the lawyers is calculated or can be negotiated as a percentage of the final winnings/settlements of the case. Hence, the attorneys are highly motivated to conclude any trial and move to their next assignment. Also, if the case is lost or if there are no winnings that any percentage of zero, remains zero i.e. no fee.

Compare this to Indian system, lawyers tend to be paid per court appearance and the final pay out may or may not be linked to their fee. So, whether ethical or not it makes sense for the attorneys involved to stretch out the proceedings as long as possible, sometimes even in collusion.

2. Class Action –

The contingency fee (percentage of winnings), make it possible to attract large legal firms to fight cases where a large number of litigants have been cheated of a seemingly small amount i.e. $5 or $10; but the cumulative amount may run into millions of dollars. The firm may retain 10-20% of the winnings but the rest gets distributed to the affected litigants as a bonus along with the justice. Such cases are known as Class Action suits.

3. Discovery –

Discovery, is a pre-trial procedure in a lawsuit in which each party, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Such extensive remedies oft times are not available in India or may have political complications.

4. Jury Trials –

US still allows Jury based trials both for criminal & non-criminal cases. This method is not in use anymore in India, as it was considered susceptible to bias.

5. Punitive Damages –

In the US, there have been multiple instances of exemplary punitive damages (sometimes running into Billions) being awarded in addition to compensatory charges to deter the guilty of a repeat offense. Unfortunately, in India mostly such punitive damages are either not sufficient or the delays in court proceedings make them ineffective.   

6. American Rule -

The American Rule is a rule in the U.S. justice system that says two opposing sides in a legal matter must pay their own attorney fees, regardless of who wins the case. The rationale of the rule is that any litigant should not be deterred from bringing a case to court for fear of prohibitive costs. However, in India, the rule says the losing party must pay the legal fees of the winning party.

7. Common Vs Civil Law Code –

In Common Law systems (mostly precedent based) the law continually evolves in addition to being amended by Common law legal systems are in use in England where it originated, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.

Civil Law (mostly non-precedent; procedural and follows the letter of written law not it’s interpretation) is the most prevalent and oldest surviving legal system in the world and is found in continental Europe, much of Latin America and in parts of Asia and Africa.        

To make matters slightly more complicated, the US practices a mix of both Common and Civil Law codes, and one needs to be also aware of each individual state’s jurisdiction specifics.

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