Choice of Law


It is important not only to ensure that you are litigating in the correct place, but also that you are applying the correct laws. Just because you are litigating a case in Florida, does not necessarily mean that Florida law should be applied to your case.

What is Choice of Law?

Typically, the rights, remedies and standards of conduct applied to a case are determined based upon the substantive law of the jurisdiction where the case is pending. In other words, Florida law will generally be applied to a case being litigated in Florida. However, a party to the proceeding can argue that another jurisdiction’s law should be applied. If the argument is raised, then the court should conduct a choice of law analysis.

“Choice of Law” is an ancient discipline with its roots in early Rome. The phrase “Choice of Law” refers to a procedural system for determining which jurisdiction’s substantive law will be applied to settle a specific aspect of a legal dispute, or even the entire case.

Why is it important to determine if another jurisdiction’s law can be applied to a Florida case?

Just because a case is pending in Florida, does not necessarily mean that Florida law should be applied to determine the rights, remedies and standards of conduct applicable to the case. Another state may have a more generous remedy that would favor the plaintiff or a more reasonable standard of conduct that could be applied to judge a defendant’s actions. Accordingly, it is important to evaluate early in every case the law of every jurisdiction which may be applied to any aspect of the case.

Increasingly, choice of law arguments have taken on added importance as global travel, commerce and communication have weakened the defense of personal jurisdiction.

Does this also apply to other countries?

Yes, under certain circumstances the law of another country or U.S. Territory may be applied.

How does a Florida court determine which laws will be applied?

Often one party has already contracted for the application of a specific jurisdiction’s law. In that case, the contractual selection should be honored absent extenuating circumstances. In absence of a contractual selection, Florida’s choice of law rules must be applied to determine which jurisdiction’s substantive law will govern the rights, remedies and standards of conduct at issue in the case.

Florida has a different set of choice of law rules for different types of cases. Because the choice of law analysis depends upon the nature of the case, the first step is to ascertain the nature of the problem involved: e.g. torts, contracts, property, trusts and estates. As an example of the different rules that apply based upon how the case is characterized, a Florida court typically determines which state has the most significant relationship to the occurrence and the parties in order to select which jurisdiction’s law applies to a tort case. In contrast, a Florida judge is generally required to ascertain the place where the contract was made in order to determine which jurisdiction’s law applies to govern the validity, interpretation, and obligations of the contract. Once the nature of the case is properly characterized, the appropriate choice of law rules can be ascertained and applied.
© Rumberger Kirk & Caldwell Attorneys At Law Web site hosted on the FirmWise platform