Podcast Transcript:
Paul Edelstein:
Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I’ll have my partner, Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, “What the hell is going on in courts?” Seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there. And hopefully, give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain.
Mr. Faegenburg.
Glenn Faegenburg:
Mr. Edelstein. You are looking-
Paul Edelstein:
Good morning.
Glenn Faegenburg:
Very, very happy, while I’m trapped in this office.
Paul Edelstein:
I am very happy. There’s no question about it. All right. I’m sitting here in Las Terrenas in the Dominican Republic, in the Samana Peninsula. Where, as you know, my wife’s family’s from. So I’ve been coming to the Dominican Republic for about 16 years, to this exact spot probably for about 10 years. I’m very familiar with this. This is Playa Ballenas, which means beach of the whales. And it’s actually whale mating season here now, so maybe you’ll catch some action in the background if you’re really paying attention. Because that’s what this place is famous for.
Glenn Faegenburg:
I like the view of your satellite office. I want to know when I’m going down there and setting up the office for good. That’s the big question.
Paul Edelstein:
Well, the amazing thing is that we’re able to actually do a little work or have these kind of conversations in this kind of manner. That’s pretty remarkable.
Glenn Faegenburg:
It is.
Paul Edelstein:
But actually it’s interesting because we said let’s have a conversation, not just about how wonderful it is to be in these great places, but about how it affects our business. Which I think it’s becoming more and more common. So as it becomes easier to travel, and it’s pretty easy to travel, but as it becomes even easier to work and travel and people could go away and actually work remotely like from here, although I don’t really do that too often. But then you’re going to have more things happen, more instances where you have stuff happen to you. Like a criminal act or a civil act, you get hurt or something like that, and now you’re in a foreign jurisdiction.
So I’m here in the Dominican Republic and I have to tell you that it’s incredibly easy to have a good time here. Incredibly easy to get a cold Presidente here. But if you have some kind of issue with the law or injury or something like that, it’s obviously very different than what we’re used to in the United States. Not just because it’s foreign and because the language, but because the rules are a little different.
Glenn Faegenburg:
I think that tends to be very true for a lot of places that are outside of America. America has many things that are great, America has many things that are not great. One of the things that I think is very good in America is our civil justice system, especially in addressing personal injury cases. Which is what you and I do. If you go abroad almost anywhere, really, the laws tend not to be as favorable, in general, to people that are injured as they are in America. It’s one of the better places of when it comes to civil justice. So tell me a little bit about the DR because I’d like to know a little bit about the rules down there and what it takes to bring a case.
Paul Edelstein:
Well, very, very different. Now, one thing is that you can bring a civil case. So if you get injured in the Dominican Republic, you can bring a case. If you’re injured in a car accident or you’re injured at a hotel, that can happen.
Let’s take the most common instance that you and I may come across, because obviously we’re based in New York, so we’re probably going to represent Americans or Dominican Americans that are traveling in the DR that get hurt. So we may get a call when either a Dominican American or an American citizen comes back to the States and says, “Well, I got hurt.” And I would think the most common call that we’ve gotten, and we have gotten them before, is that they were hurt at a hotel.
Obviously the Dominican Republic is fantastic, it’s really one of the best places to visit really in the world if you want Caribbean weather and you want this view, and you want really happy, helpful people and just a really low-key, amazing environment. It’s just the greatest place. So because of that, it draws a lot of tourism. Then the next thing that might happen is, look, it just happens. You’re at a hotel and you slip and fall or you trip on something. Or we had a case where somebody called us and they had carbon monoxide poisoning from a hotel when an air conditioning system or one of these systems had a problem, and somebody got pretty badly hurt. So they come back to the States and they figure, I want an American lawyer and I want to bring the case in America. The first thing you have to think about is, well, can you even bring the case in the United States or not? So you’re thinking about jurisdiction. That’s the first thing that comes to mind, and the very, very soon thereafter-
Glenn Faegenburg:
You’re using some lawyer words. I’m a lawyer, I understand it, but not everyone may. So when you talk about jurisdiction, what is it that you’re talking about?
Paul Edelstein:
Well, where you could bring the case. So let’s say you’re injured in Punta Cana. That’s most common tourist destination here in the Dominican Republic. You’re injured in a hotel there. I don’t know, [inaudible 00:05:44]-
Glenn Faegenburg:
Let’s make it a trip and fall because it’s easy, right? Okay, I want to [inaudible 00:05:49] a condition.
Paul Edelstein:
Simplest of all cases, the trip and fall, if something cause you to fall, you broke your leg, it’s not your fault at all, let’s say. You have a pretty bad injury and you want to bring a case. The first thing you’re thinking about as well, does Dominican law even permit me to bring a case? Do they even have civil law similar to us, where you can bring a civil case and get damages for your injury? And the answer to that is, yes, you can.
So this is a democratic society here and they have a court system. It’s very much modeled after the American system and so you can bring a case. One main difference here, though, is if you bring a case here and you progress all the way to trial, you don’t get to go in front of a jury here, you go in front of a judge. And as you and I know, that can be very different and problematic if you don’t get a chance to go in front of a jury, that kind of changes the game. The next thing you have to think about is if you’re bringing a case here-
Glenn Faegenburg:
I would also-
Paul Edelstein:
Where you bringing it?
Glenn Faegenburg:
I would also be concerned, I guess, since it is a judge that makes the decision, that somebody who is, let’s say, a foreigner or an American who goes down there and sues, let’s say, a very, very large hotel. They may have a lot of influence down there and that would be something that I would certainly be concerned about.
Paul Edelstein:
There’s no question. Look, the human element’s a major part of what we do. It’s a big part for jurors, it’s a big part if it’s a judge. I think in our experience, I know you probably agree with me, the one difference between jurors and judges or one of the differences, look, if you have six jurors, you’re less likely to have one individual’s bias overwhelm everybody else in terms of what the decision is. But if you only have one juror, and that’s what you have if you have a judge, may very well have that. And certainly I think here, there is definitely a bias in favor of the tourist industry.
So the Dominican Republic’s economy in a large part is based on the tourist industry. So they don’t really want to see the tourist industry hurt. And that kind of cuts both ways. Number one, they don’t want to see tourists get hurt or be the subject of crimes. And so there’s a big emphasis here to prevent that from happening because if a tourist gets hurt, they may not want to come back or they may have a bad review in a hotel. Or if they’re subject of a criminal activity, then same thing, bad publicity. Well that hurts everybody here. So the Dominican government and definitely the tourist industry in general, tries to prevent that kind of thing from happening.
But if unfortunately it does happen and there’s a civil suit, yeah, you’d have to wonder about a judge giving a big award to a tourist who got hurt to the detriment of some individual Dominican citizen, or more likely you’re talking about a hotel or a tourist. So those are factors right off the bat. So with that in mind, you probably think to yourself as a lawyer, I know we would and say, well, maybe we don’t want to bring the case in the DR. Can we do something different? Can we bring the case in the United States? And the answer is, yes, under circumstances and no.
So federal jurisdiction, as you and I know, if you have sort of diversity, so differences in terms of the plaintiff or defendants suing each other. Or if you have a foreign corporation.
Glenn Faegenburg:
So what you’re saying is if the plaintiff is from a different place than the defendant, they’re from two separate places. [inaudible 00:08:38]-
Paul Edelstein:
Right, so there is a way.
Glenn Faegenburg:
And that lets you get the federal court if it’s a big enough claim, right?
Paul Edelstein:
Correct. That’s right. So let’s say I’m an American citizen, it’s me, I’m injured at the Cortecito Hotel in Punta Cana, or let’s make it the Hard Rock Hotel, people know that. There’s a Hard Rock Hotel in Punta Cana. I’m injured there, I come back to the states, I come to you, I say, “Wow, I want to sue.” And you say, “Wow, well, you can bring the case in the Dominican Republic, but you’re going to get a judge.” And I say, “I don’t want to go to Dominican Republic. Can I bring the case in New York?” And the answer is, yes, you can. Because it’s a foreign corporation and I’m a foreign citizen and if that corporation’s doing business in the United States and New York. It’s very complex, actually, jurisdictional venue, as you know. But there are ways where you can get the case into a New York court and bring it there.
Now then another problem happens, and this is what typically happens in cases involving the Dominican Republic. But the next thing that would happen would be that the defendant, so in this case, let’s say the Hard Rock Hotel, that knowing that the Dominican Republic is a better venue for them will immediately move to the federal court in New York and say, “I think the case should be brought in the Dominican Republic something called forum non conveniens.” You know what that is? Because I know you studied-
Glenn Faegenburg:
I do.
Paul Edelstein:
Latin in college
Glenn Faegenburg:
And I think … it is Latin and it is what people think. It means, it’s an inconvenient forum. That’s really what forum non conveniens means. And when they talk about that, they’re talking about, is it convenient for the witnesses that are going to be involved in the case to get wherever it needs. So if it happened down in the DR, and there are witnesses down in the DR, and there is doctors down in the DR. The defendants are going to come in and say, “Listen, everybody’s down into the DR for the case. What are we doing in New York?”
Paul Edelstein:
That’s right. And if you look at the cases. And in fact, one of the leading cases is against the Hard Rock Hotel in the Dominican Republic. But this type of principle would apply if you were injured in Spain, France, the Caribbean, South America, wouldn’t make a difference. If you were injured at a big multinational hotel chain, you might have an argument to bring them into New York court, in federal court, get federal jurisdiction over them. But then they would immediately say, “Well, this is an inconvenient form.” And then the courts would look at the other form to determine whether that form has sort of stronger contact to the case. And let’s say in the Dominican cases that I know, they would win.
So in other words, the court would look at it and say, “Well, the Dominican Republic has a civil justice system, the court system’s very similar to the United States. And of course, the witnesses are there. And so the plaintiff is not hurt, he’s not harmed by bringing the case there.” And they would remove the case and send it back to the Dominican Republic, which of course creates all sorts of problems if you’re a plaintiff and you have a New York lawyer, then what do you do? You’re probably going to want to associate yourself with a Dominican law firm and you’re going to get caught in the Dominican justice system here, which is very different. You’re going to have a judge decide your case, not a jury. You’re going to be forced as a New York plaintiff to maybe come to the Dominican Republic to litigate your case. Not the most attractive scenario.
So that’s the first thing you’re thinking about, where can I bring the case? And then the second thing, or maybe vice versa, maybe this is the first thing and what we just talked about is the second thing is, when do you have to bring the case? So that’s a good question, let’s put you on the spot, Mr. Faegenburg, because I know you know a lot of things. So the statute of limitations in New York for bringing a civil personal injury suit is three years. And as you and I both know, we have to pay attention in the United States to statutes of limitations for different actions, medical malpractice versus personal injury, legal malpractice. We have to pay attention to statute of limitations if we have a plaintiff for somebody in a different state, New Jersey, Massachusetts, Connecticut, all different.
Same thing here. So there is a statute of limitations for bringing a civil suit in the Dominican Republic. Do you know what the limit is?
Glenn Faegenburg:
I do not. But I’m going to say that it’s less than in New York. I’m going to say it’s one year.
Paul Edelstein:
Wow. You’re usually spot on and your rationale is correct and your time is very close. It’s actually incredibly less than that. It’s six months.
Glenn Faegenburg:
Oh my God.
Paul Edelstein:
Six months. That’s right. Now see, that’s the reaction. Oh my God.
Glenn Faegenburg:
Right.
Paul Edelstein:
Now any lawyer is going to have that reaction because six months is like … for lawyers, maybe for clients, six months doesn’t seem that short. But for us, as lawyers, you and I both know that’s an incredibly short amount of time.
Glenn Faegenburg:
I mean, we have clients that often even don’t know the extent of their injury, have no idea that they’re badly hurt until down the road when all of a sudden they get an MRI, guess what? Everything’s messed up and I need surgery. That may not happen in the first six months. And so this may be something that someone’s not contemplating putting in suit at all during that period of time. Or it could be a medical malpractice case and six months for a medical malpractice case, I mean, it takes six months to get a medical malpractice case reviewed sometimes.
Paul Edelstein:
Yeah, that’s right. And you can bring medical malpractice cases in Dominican Republic, as well. I’m not sure it’s a six month statute of limitation.
Glenn Faegenburg:
Okay, I hope it’s not.
Paul Edelstein:
For med mal here, but it is for a regular civil suit. And by the way, it wouldn’t surprise me, I’ll have to get that answer. But it wouldn’t surprise me if it’s the same statute for medical malpractice because that’s in essence of civil lawsuit, as well. But regular civil lawsuits here, like if you’re injured and things like that, that we deal with on a daily basis, that’s a six month statute of limitation. So now you’re right, number one, a person may not realize the extent of their injuries so quickly and feel like, hey, you know what? This is really bad. I really think I need to do something about it.
But even if you had a plaintiff that was injured bad enough right away and felt like it wasn’t their fault right away and said, wow, I’m definitely … the next day, that plaintiff is saying, “Wow, this was not my fault. This is horrible what happened to me and I have a really bad injury. I want to get lawyer and bring a lawsuit.” Even the plaintiff that does that the next day after an injury in the Dominican Republic faces a real big problem with a six month statue of limitation. And that is because, well, who owns the hotel that you’re staying at in Punta Cana? Here comes the music, so here we go, it’s a party here all the time. Who owns them? Really, I can’t believe I don’t have a Presidente.
Glenn Faegenburg:
It is 10:30 right too?
Paul Edelstein:
It is 10:30 in the morning and the bar is open and music is on. And I probably should have a cold Presidente instead of a coffee, but I’m working.
Glenn Faegenburg:
Right, I get it. I did see a fisherman go by. I will guarantee you that during this vlog, there’ll be no fishermen going by me. Okay, that’s a guarantee.
Paul Edelstein:
Probably not.
Glenn Faegenburg:
I’m seeing fisherman, I’m seeing bathers, it’s very nice. I kind of want to just dive into the computer screen right now. Grab a Presidente.
Paul Edelstein:
This is definitely a good office setting, no question about it. Just getting going here in the DR and as soon as I’m done working with you, I’m absolutely going to get a cold Presidente [foreign language 00:15:22], which is really what you need here. A Presidente with the bridesmaid dress, that’s the most important thing you get here. That would be a sheath of ice. So I can almost guarantee you that will be my reward for work here today.
But getting back to the topic we were talking about, one of the first things you’re going to have to think about as a plaintiff or a plaintiff lawyer, if you get a case from the Dominican Republic or any other foreign jurisdiction is you’re saying, “Well, who is the defendant?” And I don’t think a regular person really thinks that that’s a complex question. Well, who am I suing?
But here it’s an incredibly complex question because the hotels have very sophisticated corporate structures. Many of the resort hotels here in the Dominican Republic are owned by Spanish companies. So now you’re talking about various complexities in just figuring out, who am I suing? I’m not sure about the Hard Rock Hotel, but I know some of the other hotels in Punta Cana, the Bavaro Beach Hotel, the Cortecito Hotel, they’re owned by Spanish companies who have a really longstanding relationship for obvious reasons with the Dominican Republic. They’ve been integral in helping develop the Dominican Republic, colonizing it obviously, and going through a lot of the complexity with that. But they now have a business relationship going on here. And so that means that many of the hotels that are owned here are owned by Spanish companies or the Spanish companies put ownership of those companies in Caribbean names.
Glenn Faegenburg:
And these countries all have different laws, all have different time limits. I know that we’re big on common law in America, which means we follow case law and the development of case law. I know that they’re bigger on black letter law in Europe, I presume Spain would be one of those places that is probably more along the lines of what they call black letter law, the law from the law books, as opposed to the interpretation. I’m not sure if that’s right, but I think it is.
Paul Edelstein:
Yeah, I mean all of those things. But let’s just take from a practical standpoint. So somebody walks in our office, either mine right here on the beach, that would be interesting, or ours in New York where you’re sitting. And says, “I just came back from a vacation in Punta Cana, or I tripped on a giant hole near the pool, they completely forgot to cover this thing. It was a horrible, horribly negligent, very obvious. The hotel said, they’re very sorry, he has an accident report. It really happened, I broke my leg and I’m going to be out of work for six months. So I need to do something.” And we think to ourselves, as lawyers, we say, “Wow, well, there’s liability.” The hotel was at fault, there’s an injury, this person’s hurt. And then you figure six months statute of limitations, but you’re like, “Okay, it’s only one weekend, so I have time.”
But then the next thing you’re thinking is, “Well, who am I suing? Who is it?” And you may think that’s a simple thing like, oh, well, I’m just going to sue the Hilton, the Hard Rock or the Cortecito in Punta Cana. But you may find that that’s not that simple of an answer. That hotel, even though you know the name of the hotel, who is really the corporate owner of it? And what company and where that corporation, where that entity is now incorporated. In other words, where they should be served with process? And what rules apply to them there?
And then the next thing is, okay, even if you figure all that out now, now you said, “Okay, wait a minute, it’s a Spanish company, but it’s owned by a Caribbean holding company that’s based out of, I don’t know, St. Martin.” I mean, this is really what you see, okay? And there’s various reasons, obviously, there’s tax structure reasons, there’s very complex advantages as to why these companies would want to structure their businesses this way. It’s not necessarily to avoid lawsuits, it’s probably not one of the things they do it for. But it’s certainly financial in nature. But what it does is create incredible obstacles for you, as a plaintiff lawyer, to figuring all this out.
Now you’re trying to figure all this out and you’re saying to yourself, “Oh my gosh, there’s only a six month statute of limitations to bring the case, if I bring it into Dominican Republic.” And that six months statute of limitations would also be applied even if you brought the case in the United States. So in other words, if it started the lawsuit in the United States, which is what we talked about at the beginning, and somehow we’re able to keep it in the United States federal court. That federal court very likely would also say, “Well, I am going to apply Dominican law though, because that’s where this happened.” And so they would apply that statute of limitations.
So you are racing against the statute of limitations clock while trying to figure out whether you could bring the case in a federal court in New York and who to bring the case against, the hotel, the name of the hotel, the corporation that owns it, where is it incorporated, in what country? And then how do those laws in that other country maybe impact what you’re doing in terms of your civil lawsuit? So is it the Bahamian Law where they’re incorporated in The Bahamas or something like that? It wouldn’t be The Bahamas, but some Caribbean nation where they’re incorporated there. Is it Spanish law if they’re a Spanish corporation? Is Dominican law going to apply? Can you apply New York law? All of these things are going to combine all at once. How’s that sound?
Glenn Faegenburg:
It sounds like that if somebody gets hurt in the Dominican Republic at a hotel, I’m going to be sending it over to the Dominican satellite office and you can handle it. And figure out whether The Bahamas or Spain or the Dominican Republic or New York or whatever it is. And I’m sure you’ll do a great job.
Paul Edelstein:
Well, I’ll tell you what, I certainly think I’m better equipped to do it than most people because of my connections to the Dominican Republic. Obviously, my family lives here and I’m here every single year. And I also have a number of attorneys that I’m friends with here, and law firms here, very prominent law firms here that I’ve known for many, many years and had these conversations with. That’s a major advantage that I have. Now, it doesn’t change the complexity and all of these issues that we’re talking about. But at least it means that our firm and me, I guess, predominantly, has an awareness of this. And that I at least have Dominican firms that I can immediately associate with to advise me. They’re the ones that have taught me about this.
There’s certain things I can learn on my own through my own research, but the practicalities and nuances and strategies, like for instance, if you and I were in a [inaudible 00:21:22] my God, we know more than anybody and how the nuances of that. But anybody is capable of figuring out the black letter law and procedure, but not anybody’s able to figure out all the nuances. Well the same thing goes over here.
Glenn Faegenburg:
Yeah, takes years of experience and doing it and being in the know. Yeah.
Paul Edelstein:
There’s no question about that. And that’s only magnified when you’re dealing with a foreign jurisdiction like this. And so we get calls, I know you and I have had this happen many times over the years, and a lot from the Dominican Republic … I don’t know, maybe it’s my sort of half Dominican roots that I have here that draws a lot of Dominican clients to our office who are vacationing here and call me when they get hurt. So we seem to come across these cases. But boy, if you don’t have this kind of knowledge and awareness immediately, you could run into a major, major problem. Not just for the client, but for you as a lawyer.
So I think if I were watching this podcast in any foreign jurisdiction, first of all, I wouldn’t wait at all. It would be an immediate thing, do not wait, contact somebody. And then ask that attorney, are you familiar with the particular rules and regulations of the area that I was in? And do you have association with attorneys, local attorneys in that area? I mean, if the attorney you’re talking to in the United States of New York doesn’t have those connections or those answers for you immediately, I’m not saying they have to know all the statute of limitations in all these jurisdictions and know all these different rules that we’ve talked about.
Glenn Faegenburg:
Know all the laws of Spain-
Paul Edelstein:
They don’t have to know about that.
Glenn Faegenburg:
and The Bahamas, right.
Paul Edelstein:
Yeah. I don’t think they have to know all of that right away. But they have to know immediately that they may be faced with all of these different layers of complexity.
Glenn Faegenburg:
That it’s not as easy as it may appear. That’s for sure.
Paul Edelstein:
Not at all. Not at all. It is incredibly, incredibly complex. In fact, look, I mean, obviously I’m sort of half Dominican in terms of the way my life is and my family here. And so I come across this a lot, these are conversations that we have all the time with family members both here in the Dominican Republic where I am now and back in the United States. And the level of knowledge, if you don’t have this at your fingertips right away to say, well, I have access. I know a lot of these aspects, and I know who to go to, we associate with. I mean, you could find yourself in a major problem really, really quickly.
Glenn Faegenburg:
Okay, so you know what? I think that the answer to this week’s blog is, if you get hurt in the DR, you probably want to call Paul. Okay? Better call Paul, I think is the answer for that.
Paul Edelstein:
That’s probably good advice.
Glenn Faegenburg:
I’m about to go to our next meeting where I’m standing in for you. Okay?
Paul Edelstein:
All right. So you go do that. I’m going to keep doing what I’m doing.
Glenn Faegenburg:
And you go do the hard work that you’re going to do.
Paul Edelstein:
All right.
Glenn Faegenburg:
All right.
Paul Edelstein:
Signing off-
Glenn Faegenburg:
Take care.
Paul Edelstein:
From Paradise. We’ll see you soon.
Glenn Faegenburg:
Peace.
Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at Edelsteinlaw.com. Either way, we’re always going to be here in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care.
You can find The Edelsteins Faegenburg & Brown Law firm on LinkedIn.