Filing in Federal or State Court? The Answer May Significantly Affect Your Case

Filing in Federal or State Court? The Answer May Significantly Affect Your Case by Evan Schwartz


When suing for long-term disability benefits, an important choice for your lawyer is whether to file the lawsuit in federal court or state court. New York State provides an interesting contrast for the purpose of evaluating this choice:

Jury Unanimity

In civil cases in New York State, a civil jury consists of six people—only five have to agree to meet the unanimity requirement.

In federal court, complete unanimity is required—all jurors (usually 6 but sometimes more) have to agree whether or not the policyholder is totally disabled or disabled within the meaning of the policy.  

Needing unanimity can be important for both sides, but often more so for the policyholder.


New York’s Court of Appeals—its highest court—has ruled that surveillance materials must be turned over to a policyholder in a lawsuit against the insurance company prior to that policyholder testifying in their deposition.

This means that the policyholder can see and evaluate the insurance company’s evidence prior to testifying—this allows preparation time and an early opportunity to explain the circumstances surrounding any surveillance.

The opposite is true in federal court. Surveillance materials are only exchanged after the policy holder testifies in the deposition. Thus, the policyholder is operating with a blindfold if there is surveillance involved in the lawsuit.

Expert Disclosure

Ordinarily, in New York State Court, experts do not need to testify before a long-term disability litigation goes to trial.  In addition, they ordinarily do not need to be disclosed by the plaintiff until after discovery is over and, often, shortly before trial. By disclosing the experts right before the trial, there is the added element of surprise. Without any pre-trial disclosure or deposition testimony by experts, significant expense is saved.

Conversely, experts in federal court must be disclosed during ordinary discovery, and the insurance company has the right to take their depositions (which most companies will do). As a result, the process is more time-consuming and expensive, and the element of surprise is eliminated.

In long-term disability lawsuits, there can be significant differences between choosing to sue in state versus federal court. It is important for the policy holder’s attorney to evaluate whether a lawsuit can be filed in either state or federal court, considering the specifics facts of your case, along with the practical and procedural realities that exist in a state where your lawsuit will be filed.                           


Evan S. Schwartz
Founder of Schwartz, Conroy & Hack