What is removal?
Removal is the process of transferring (commonly called “removing”) a case from state court to federal court. If they so choose, defendants can remove a case if it could have been initially filed in federal court, with some exceptions.
State courts play no part in deciding whether a case is removed. Once removed, the state court loses jurisdiction over the case, although the federal court—on its own or on motion by the plaintiff—may remand it back to state court if federal jurisdiction does not exist.
Only a defendant can remove a case to federal court (after all, the plaintiff chose state court as her forum). Many defense attorneys believe federal courts are more favorable to defendants than state courts, so removal is one of the first things considered when sued in state court.
By removing a case to federal court, defendants may benefit from:
- Different judge
For one reason or another, the state court judge you draw may be perceived as unfavorable. You can avoid that judge by removing.
- (Generally) better judges
There are many fantastic state court judges, but there are also some bad ones. This is true for federal court too; however, generally speaking, there is less variance in the quality of federal judges.
- Experience with federal questions
Some state court judges handle everything from family law to slip-and-fall to consumer disputes. Especially for cases involving a federal question, federal judges are likely more familiar with the law.
- Better developed caselaw
Because more federal opinions are published than state court opinions, the law is more developed in federal court. This means more consistent—and thus predictable—treatment in federal court.
- Faster resolution
Cases usually move faster in federal court. For a defendant, time is money. The longer a case lingers, typically the higher the cost of defense—both in terms of direct cost of litigation and the cost of business interruption. Resolving cases faster means lower overall litigation costs.
- Different jury pool
Usually, a federal district is geographically larger than a state district so the federal jury pool typically encompasses a wider demographic than a state court jury pool. This could be beneficial or detrimental, depending on the circumstances. Federal juries also must be unanimous in reaching a verdict, whereas in some state courts unanimity is not required.
- More favorable procedural rules
In Texas, the ability to dispose of a case early on is somewhat limited. The federal rules, however, provide several procedures that allow for early disposition. The federal rules are also generally more specific, resulting in certainty regarding expectations and obligations, which can vary in state court.
- Different voir dire procedures
In many federal courts, the judge (or magistrate judge) conducts voir dire in a more limited fashion than what attorneys conduct in state court. Preventing the plaintiff’s attorney from conducting an extensive voir dire may have its advantages, depending on the attorney and the case.
- Smaller verdicts and judgments
State court jury verdicts are typically larger than their federal counterpart. Many defense attorneys also believe federal judges are more likely to reduce large jury verdicts.
- Unfamiliar forum for plaintiff’s attorney
Often plaintiff’s attorneys file in state court because they are not as familiar with federal court. By putting them in an unfamiliar forum, this can encourage a more favorable settlement or result in winning on procedural grounds.
If you were sued in state court over a business or intellectual property dispute, contact us to learn how we can help.
