IF A TREE FALLS IN THE FOREST…

And no-one is there to hear it fall, does it still make noise?

The same can be asked about a lawsuit. Sometimes, one may fairly ponder who will hear it.  Two examples were recently considered by the Supreme Court.

The first example was about a cross-border child custody dispute. A Texas court decided that a child should go live with the child’s mother in Scotland. And off mother and child flew, within hours of the decision. The father appealed. But could a Texas court hear an appeal against a Scottish person, about a child residing in Scotland? Was that lawsuit still making enough noise to be heard from inside a Texas courthouse?

The second matter can be summarized like this. Only federal courts can hear patent cases.  State courts hear claims of malpractice. So who hears a complaint of malpractice that arises out of a federal patent lawsuit, and which can only be resolved by deciding some underlying disputes of patent law? Where did that lawsuit fall?

The Supreme Court answered the tree-falling question in these two examples. A Texas Court could hear the appeal, and state courts hear the malpractice cases (with an opening for very rare exceptions). The lesson here is from the fact that those cases reached the U.S.
Supreme Court in the first place. The seed of a long and complex litigation punctuated by several appeals is planted from the first day of the lawsuit, when deciding where it will be filed. Many trees are yet to be felled.