Bringing an Action in Federal Court versus State Court.

On another list serve an attorney asked if there was any benefit to bringing an action in federal court versus state court (assuming there is diversity).  My friend Gary Wallace’s answer is great.

There are a great many differences between the two forums.  Here are some:

1.    Filing fees differ, especially post-complaint filing.  E.g., MSJ fee now $500 in state court.  Non-refundable $150 jury fee must be posted very early in the case (or waiver may result) (CCP 631).  Typical motion fee: $60.  It can add up.

2.    Time to respond to complaint: 21 days in federal court vs. 30 days in state court.

3.    Recording of proceedings:  Under federal law, each session of court and every proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, stenotype, stenomask, or electronic sound recording equipment. The method of recording may be elected by the district judge.  In contrast, budgetary constraints have greatly reduced the availability of court reporters in state court proceedings and there is little or no electronic recording.

4.    Pleading requirements:  Actual (state) vs. Notice (federal) pleading.  Notice pleading is “easier,” although several recent federal court decisions have closed that gap.   

5.    No peremptory challenge of federal court judge:  State court permits one “CCP 170.6” peremptory challenge.  Not so in federal court where you will need to state your reasons in an affidavit (28 U.S.C. sec. 144).

6.    Discovery: Among other things, FRCP 16/26 discovery plan requirements and “free” early disclosure obligations differ from CCP 2025-2033.

7.    Expert witnesses: Unlike FRCP 26, experts need not prepare a report in state court.

8.    Trial by Jury:  Per FRCP 48, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.  The jury pool has also traditionally been considered to be different from that available for state court trials. Per CA Constitution, CA state court juries consist of 12 unless the parties agree in open court to less. CA civil verdicts require three-fourths of the jury.

9.    Judge’s rulings: Federal court judges are notoriously slow issuing rulings.  State court judges are usually quicker.  But there are certainly exceptions in both courts.  Also, if this is a “run of the mill” malpractice case (no offense intended) in the eyes of a federal court judge you may be secretly “fast-tracked” or “slow-tracked” depending upon who is assigned.  Also, the federal judge could issue an OSC re amount in controversy, so be prepared to show damages (not just plead them) in excess of $75K.

10.    Security at entrances:  Of course, both have security checks these days.  But you generally don’t have to take off your shoes and belts and show ID to enter state court. :))

Gary R. Wallace
Law Office of Gary R. Wallace

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