If you pay for an auction you won on eBay and the seller does not deliver, what can you do? Can you sue him/her in your local court? Do you have to travel to his/her home state? Obviously, for smaller value items, and even for some larger ones, the answers to those questions can predetermine the lawsuit victor. The question is, therefore, how can you obtain jurisdiction over an internet related dispute with someone in another state?
Most people believe the law is pretty clear on Internet jurisdiction. That is simply not the case. The variety of Internet related disputes expands far faster than legislators could ever react. Judges are often left, therefore, applying bricks and motor jurisdictional principles to Internet disputes. This is actually good for you. Great litigators (lawyers who try cases in court) love ambiguity. If the law is ambiguous, the result depends much more on the lawyer’s skills as an advocate, and much less on the law. Litigators prefer to live or die by their own swords. Since most seasoned litigators have hubris in spades, you would think they would love Internet cases. Unfortunately, litigators also prefer cases with big dollars at issue and are loathe to admit weaknesses almost as much as they despise a loss.
In Internet cases, these factors come together in a “perfect storm” of sorts. Litigators know that when arguing ambiguous points of law, one side’s vastly disproportionate knowledge about the area of law will overshadow a small disparity in powers of persuasion. Combine this with the fact that most litigators are unfamiliar with the law of the Internet and you will see why so many are eager to “punt,” explaining that law does not provide you with the jurisdiction you need, rather than admiting they are not up to the challenge or taking a case they cannot win.
Most litigators can handle most types of lawsuits. For cases involving Internet jurisdiction, however, you need a litigator familiar with Internet law. It is also best to have a litigator with some actual experience in that area. I cannot tell you how many times seasoned litigators have told me I could not obtain subject matter jurisdiction or personal jurisdiction in a case in which I was able to present strong enough jurisdictional arguments to generate a favorable settlement. In these cases, they other side determined, quite correctly, that losing the battle over jurisdiction meant losing the war.
Internet law opens up more jurisdictional possibilities than probably any other area of the law. Even if the other side may have a better potential position on the issue of jurisdiction, I have had defendants unintentionally and irreparably destroy that position through tactical error. While the law allows remedy for many errors, waiving personal jurisdiction, is not one of them. A big mistake like that in a small Internet lawsuit means it is time to get out the checkbook.
The key to winning your Internet lawsuit is not taking the first “No” you get from an attorney. I rarely say “No.” Instead, if I do not think I can prevail on a Internet related case, I give the client my reasons and encourage them to obtain a second (or third) opinion. The next Internet attorney they contact might be one that just sucessfully resolved a case very similar to their own. The more experience the attorney has with Internet related cases, the more likely it is that they will be able to help. There is no substitute, however, for an attorney that just sucessfully concluded a lawsuit involvng the exact same issues before the exact same judge.
Bricks and mortar jurisdiction is so well settled, and so rarely forces settlement, that most litigators give it realatively short shrift. In contrast, a skilled attorney, experienced with Internet lawsuits, can often parlay a little Internet jurisdiction into a large victory.