Litigation in Palau

There are often substantial differences between litigation procedure in larger jurisdictions and in smaller jurisdictions. I practice in one of the world’s busiest and most sophisticated jurisdictions, but I often handle cases in smaller ones.

Recently, I spoke with Gregory Dolin about litigation in one of the world’s smallest jurisdictions, the nation of Palau. Justice Dolan sits on the Supreme Court of Palau. Palau’s judicial system is newer than many, since the country only became independent in 1981. And it faces logistical issues, with its fewer than 20,000 people spread over about 340 islands. But I found many of the procedures to be very similar to American ones, largely because its laws are based on America’s due to the country’s 20th century administration of Palau.

Why should you continue reading this post about litigation in Palau?

• You administer a growing dispute resolution system and would like to learn what other jurisdictions are doing

• You’re considering a Palau forum selection clause in your next contract

• You’re preparing for litigation in a small jurisdiction in the United States and are looking to learn about procedures in other small jurisdictions

Background

When did you join the Palau Supreme Court?

This January.

Before your current job, you taught law. What subjects did you teach and write about?

I wrote about IP law and I taught about several subjects. I taught tort law, contract law, property law, and healthcare policy. Lately I have been interested in religious liberty.

What type of commercial disputes do you hear?

I hear some commercial disputes, but not big ones since it’s a small country. The amount at stake in the disputes is usually between $1,000 and $100,000.

Land disputes in Palau are more common. Land is the most valuable property in the country and disputes over it go on for decades.

Are there many litigators in Palau?

There is a Palau bar, with about twenty lawyers. Another twenty or so lawyers work for the Attorney General’s office and other government agencies. But attorneys in the first group are for hire and they litigate. I see the same attorneys over and over in the Supreme Court.

Most lawyers studied in the United States and the Palau bar exam is the multistate version of the American bar exam, plus a one-day exam on Palau law. Palau lawyers must also take the American MPRE ethics exam.

For land disputes, however, there is a special land court that allows for more lax proceedings. Litigants there are often unrepresented.

What books and websites do lawyers in Palau use for legal research?

There is not a good commercial website on Palau law. The Supreme Court puts its decisions online, so people use Google for research.  And most attorneys are already aware of most of the court’s opinions.  There is also a library with copies of books like the Corpus Juris Secundum and the Restatements.

Lawyers here use Lexis and Westlaw to research United States law, which may be used as precedent under a statute that makes it an authority if there is no applicable binding Palau law.

Generally speaking, how many pages are the complaints and briefs in commercial disputes in Palau? 

I do not really see a lot of complaints as a Supreme Court justice. But I am sitting by designation as a trial judge in a few matters. And in my experience, complaints are probably along the lines of 3-5 pages each. They are just a short and plain statement of the plaintiff’s allegations, not speaking complaints that are meant to get in the newspaper.

Similarly, legal briefs tend to be much shorter in Palau than in the United States since disputes in Palau are generally less complex.  A lot of the disputes are factual, such as a dispute about who was on what land at what time.  Palau courts do not really hear many complex multinational shareholder disputes. Briefs vary in length based on quality of lawyering and are often up to ten pages. One case had a brief of up to 30 pages, but that was unusual.

Land disputes, which are more common, may have longer briefs since those disputes are more complex.

Do attorneys in Palau electronically file documents with the court, or must they deliver paper copies of pleadings to the courthouse?

Palau does have e-filing, but it is not as good as ECF in the United States. It is voluntary and some older attorneys do not use it. This is because non-dialup internet access only came to Palau around 2017.

Even now, the country only has one internet cable to Singapore and is considering a backup one to Guam. One notable limitation to the system is that I can’t access the filed documents from outside the courthouse.

Many people still file documents in paper copy, but then clerks scan the documents for them into the e-filing system.

Not all court documents are e-filed. A lot of paper exhibits aren’t scanned into the system. And while trials always have court reporters, their transcripts are only filed on appeal and, even then, only in hard copy.

Generally speaking, how long does it take for a case to go from complaint to judgment, not including appeals?

Although some cases go up and down the appellate ladder, normally cases that are not land disputes take no more than a year and a half to go from complaint to judgment, and that’s at the outer limits.

Who decides issues of fact in commercial disputes: a judge or a jury?

The Palau jury system is just for criminal trials, not for civil trials.  Some people see this as a benefit, since sophisticated judges decide cases. But others may prefer knowing that decisions are made by regular “people off the street.”

Are there specialized courts in Palau?

Palau has “three and a half” types of courts. It has a land court that hears land disputes. It has a Court of Common Pleas that hears traffic tickets, petty crimes, contract disputes for less than $10,000 at issue, and crimes where the penalty is fewer than five years in jail or a $10,000 fine.

It also has a Supreme Court, which has both a trial division and the appellate division. The trial division hears non-land disputes, and also the collateral attack of land disputes. The appellate division hears appeals.

Generally speaking, does Palau entitle litigants to exchange evidence in pretrial discovery?

There are rules for discovery in Palau, but that doesn’t mean that discovery really happens. And there certainly is not extensive discovery like in the United States.

The cases I have handled as a trial judge are still in the early stages before discovery.

Does the court allow winning litigants to recover their attorneys’ fees?

No since the court follows the United States rules. There may be fee-shifting, though, when the court imposes sanctions.

Do you believe that Palau courts have a particular strength for resolving commercial disputes? 

Litigation proceeds more quickly here than in most places since we are smaller and we have the bandwidth to do it.

Land matters, however, are a bit more complex since a lot of the testimony comes from old people and some have a hard time traveling from other islands. Rules for intervention during a case are lax, so people will often show up midway through a case. Some land cases in Palau last literally decades.

How about a weakness? 

Palau is not a place with a huge amount of commercial disputes.  By contrast, I suspect that the Marshall Islands, another Pacific Ocean country, has a lot of maritime disputes because it is in the top three or five for ship registries. But Palau is not like London or the United States or Hong Kong where people come to resolve disputes.

And while Palau has plenty of good lawyers, its lawyers and judges are not very experienced in big commercial cases.

Do attorneys in Palau need to wear a special robe or some other garment in court?

Sadly no.  Palau is an informal country.  Often attorneys do not wear suits in court.  Many official functions are “island formal,” which can mean a Hawaiian shirt and slacks or a button down shirt and no tie or jacket.

This is generally a cultural thing since it’s hot and it’s humid.  It is not a lack of respect to the court or unprofessionalism.  In fact, most of the attorneys who practice in the court have law degrees from the United States and are familiar with professional dress in American courts, but that sort of dress is not common to Palau.