Litigation in Mexico
Mexico is one of America’s largest trading partners, and so commercial disputes with Mexican businesses arise frequently. But even though it is so close to the United States, many Americans are unfamiliar with its judicial system, since it is based on a civil code and its laws are promulgated in Spanish.
So I asked Esteban Maqueo Barnetche of the Mexico City law firm, Maqueo Barnetche, Aguilar y Camarena, S.C., about his litigation practice in Mexico.
Why should you continue to read this post about litigation in Mexico?
You do business with Mexican suppliers or customers and are interested in how courts in Mexico may handle a dispute with them.
You are bored from reading about Mexico’s culture, cuisine, and history and would prefer to read about its courtroom procedures.
You are interested in how Mexico has expanded its use of electronic filing since the covid-19 pandemic.
Background
Can you tell me about the kinds of disputes you handle in your legal practice?
We mostly handle commercial cases which involve disputes between corporations’ shareholders and between the administrators and members of the board of directors of corporations.
We also handle contract disputes, commercial and civil disputes, complex estates disputes, real estate, construction, and infrastructure disputes, and many others. We also frequently handle civil fraud cases.
What type of clients do you generally represent in disputes?
We mostly represent small and medium businesses, and their shareholders or administrators.
From time to time, we’ve also represented multinational corporations, but that’s not very frequent. Most of our clients come to us because they have a dispute against a large corporation with a lot of economic and political power and we’ve built a good reputation litigating against these companies and the big or famous law firms that usually represent them.
Besides Microsoft Office, what software do you use in your practice?
Acrobat DC Pro, WhatsApp, Telegram, Zoom, Dropbox, Google Drive, and Todoist mostly.
What books and websites do you use for legal research?
We usually use the classical civil, commercial, and procedural doctrine books of the most respected authors. Sometimes we access them in our own library and sometimes we access them online.
Most of our legal research, law, precedents, and jurisprudence are accessible through the Supreme Court’s website as well as congress’s website.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
The norm has been to file in paper.
A few states in Mexico have had an e-filing system called “e-justice” that started a few years ago. The only one that I really think works fine is that of the state of Nuevo Leon.
Since the pandemic began, many other states have implemented e-justice systems, but they are still very underdeveloped. The federal justice system has had electronic filing for a couple of years now, but only for Amparo proceedings. Because of the pandemic, the federal system is starting to implement electronic filing for all cases, but because the courthouses currently only have a small staff during the pandemic, the digitalization and scanning of the case files is taking forever.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
It really depends on the complexity of each case. We’ve filed lawsuits where the complaint was only three pages and also ones where the complaint was more than a thousand pages, plus hundreds of thousands of pages of exhibits.
Generally speaking, how long does it take for a case to go from complaint to judgment?
This depends on the type of trial in the case and the city. Cases involving oral and summary trials take less time than ordinary trials.
Traditionally in Mexico, all trials were conducted entirely in writing, except for some in-person examination of witnesses. But in the past few years, Mexican courts have conducted “oral trials” to expedite cases. In these trials, basically only the complaint and the response are filed in paper. The remainder of the submissions are presented in-person before the judge during hearings similar to ones in the United States. Eventually all commercial trials in Mexico will be oral, but for now, only trials in which the amount in dispute is $200,000 USD or less are oral.
A “summary trial” is a procedure that is based entirely on written submissions, but takes place more quickly than ordinary trials and with shorter deadlines. They are used for lawsuits based on, among other things, promissory notes and other credit documents or mortgage proceedings.
In Mexico City, I estimate that it takes an average of a year to a year and a half to get a decision from the lower court in a case with an ordinary trial. But I had a case that took ten years to get a judgment from the lower court and I have also had cases that proceeded to judgment in two months.
Does Mexico have specialized courts that only hear commercial cases?
Only in a couple of states. Federal venues recently adopted commercial courts, but only for small claims.
Are most of your cases in state courts or federal courts in Mexico?
It varies. The commercial cases are divided between local and federal courts since commercial maters are technically federal, but our constitution allows us to handle federal commercial cases before a state court as well.
In Mexico City, we have around seventy local civil judges and fourteen federal civil judges, in addition to four specialized commercial judges for small claims. I believe that most of the commercial cases are handled by local courts in Mexico, but we like federal courts better, so most of our cases are in federal courts.
But in practically every trial, there is at least one constitutional federal trial called an “Amparo,” so even if the case is handled before a local court, it eventually will get reviewed by a federal court in a kind of but not technically second or third instance appeal. Again, this is not really an appeal; it is a constitutional review of a judgment in an independent federal case that reviews the final judgments of local cases.
Who decides the facts in a commercial case? Is it a judge or a jury?
A judge
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
No. Mexico does not have discovery or pretrial evidence exchange, so your initial complaint will begin the trial process and the plaintiff must file all of its supporting documents with the complaint. The plaintiff can only file other documents after the initial pleadings are filed, and only if she swears she did not know the document existed at the time of the complaint or if it is dated after the filing.
If you know that some evidence is in the hands of your counterpart, you need to ask for it before the case begins in a procedure involving a notary public or witnesses. If you have no success with this procedure, you can ask the judge to compel the other party to produce it. And if the defendant does not comply with the judge’s order, the facts that were intended to be proved will be deemed true. If the interested party still needs the evidence, sanctions can be issued against the disobeying party.
Expert witnesses give their opinions after the initial pleadings have been filed, but before the trial. Still, parties need to disclose their intent to call an expert witness early in the litigation.
During the trial, there is a stage for the presentation of evidence. In this stage, both parties can interrogate counterparts and witnesses, and experts can submit their opinions in writing. After that, parties are allowed to interrogate the expert witnesses.
If you win, does the other side reimburse your attorneys’ fees?
Judges will only award attorney’s fees in certain specific cases that are outlined in the Civil Procedure Codes or the Code of Commerce.
Some of these cases refer to frivolous complaints and defenses, bad faith, and adverse judgments in executive or summary cases.
Are the Mexican courts open to the public? Can ordinary people watch a commercial trial?
Yes, hearings are supposed to be public, but there is limited space for audience members.
Do you believe that Mexican courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
In our experience, even though federal courts have more preparation and training, Mexico City’s judges appear to have more experience in commercial matters. This is because federal judges do not handle as many cases and are more focused in Amparo continuous education, so that’s a weakness they have.
But we still have positive opinions about the federal courts. Federal high tribunals are in charge of issuing opinions and precedents and the federal courts that handle amparos for commercial judgments also have good experience and have well trained personnel.
The few specialized courts are obviously the strongest in commercial issues.
How often do you go to the courthouse? When you are there, do you need to wear a special robe or wig?
About once or twice a month, I go to courthouses to have meetings with judges and magistrates. These meetings are legal in Mexico and a common practice, even though opposing counsel does not attend. (I do not agree with ex parte communications, but that is our common legal practice). I attend these meetings when a judgment is near to come or if there is some non-official complaint.
For hearings, I only attend if it requires some special strategy or experience, or if they might be fun. Otherwise, a partner or associate will take care of them. But if my client needs to be at the hearing, I’ll be by their side.
No special attire is required, but we usually wear a suit and tie. In regions where it gets really hot, we usually wear dress slacks in a comfortable breathable fabric such as tropical wool, linen or cotton (rarely jeans) and a dress shirt or semiformal attire. Guayabera shirts are also popular.
