“You are not doing your job unless you take every conceivable point.”
This was said to me by an eminent U.S. lawyer when I suggested that we might limit some of the arguments that we had been putting forward. The approach contrasts with that of a prominent Queen’s Counsel (QC) who told me “not to tarnish good arguments with weaker ones; the judge will be confused between the two and we will lose ground by trying to advance arguments without merit.” Why is there such an apparent difference of approach between English and U.S. lawyers? Perhaps the answer lies in the difference between the structures of each system.
Structure of English and U.S. Proceedings
Both the English and U.S. systems have an adversarial approach to litigation, as opposed to the inquisitorial approach used in civil law countries. In practice this means that lawyers in the U.S. and England are able to take a more aggressive and dynamic approach than lawyers in civil law jurisdictions, where the judge dictates more forcibly how a case is run, however there are a some nuances to consider.
The similarity between the English and U.S. systems is typified by the general approach in setting out the case in pleadings. While English lawyers may preen themselves on having a more concise and precise approach to pleading a case, the U.S. lawyers will counter this by saying that their pleadings are much easier (and more enjoyable) to read. Both points are probably correct, and in both U.S. and English systems the purpose of the pleadings is to set out the claims being put forward. Interestingly, it is probably in the pleadings that English lawyers are more willing to adopt a U.S. style approach and plead arguments that may not necessarily run at trial.
The more concise nature of an English pleading has the disadvantage that there are often requests for further and better particulars because the pleaded case is too subtle and therefore may not actually clearly set out the nature of the claim. Similar requests can be made of U.S. pleadings, but given the fuller approach generally taken by U.S. pleadings, requests for further and better particulars are likely to have less success than they sometimes do in England.
Another similarity between the two jurisdictions is use of disclosure. Both systems rely on an extensive disclosure exercise being undertaken, with the obligation being to disclose all relevant nonprivileged documents. Indeed, in the U.S. it appears nonrelevant nonprivileged documents are often provided. This emanates partly from U.S. lawyers being able to make lengthy written requests for the documents they expect to see and this being countered by the disclosing party responding almost eagerly to such requests by giving voluminous piles of documents, including those which are not necessarily relevant to the case.
In England there is an obligation to disclose only relevant nonprivileged documents; if one were to disclose voluminous quantities of nonrelevant documents, the court would require that disclosure to be cut down.
A valid criticism of both systems is that disclosure is often excessive. Many in-house counsel are irritated by receiving requests for masses of documents, for those documents to be reviewed, listed and produced, only for the actual documents relied on at trial to be a fraction of those disclosed. Indeed the relevant documents are often contained in the core bundle, which is rarely more than one file.
As to obtaining evidence before the trial, there is a significant distinction between English and U.S. proceedings. In England, evidence in chief is given by way of witness statements, which are written statements of fact that the witness signs and confirms with a statement of truth. In the U.S., depositions are taken before trial. While these are taken under oath, and recorded, they are often a dry run of the cross examination at trial.
A witness statement is often seen as a defensive measure. The party calling a witness has to put in a witness statement for that witness or they will be unable to call him at trial. It is imperative that in the witness statement you deal with all matters concerning the case known to the witness, including those that are detrimental to your case. It is far better to deal with weaker points in your own witness statements than let the other side exploit them on cross examination.
With depositions, in contrast, the aim is often to be offensive and to attack the other side’s witnesses in advance of trial. As a result, witnesses who give depositions often try to give little or nothing away. Unless the question is precise, it may be possible to do just that. Further, given that depositions take place some time before trial, the case may not have been fully developed when the deposition is taken.
Having had experience of both systems, the witness statement is the more revealing. Despite the best efforts of the lawyers who draft the statements, you cannot disguise or ignore weak points in your case, whereas with depositions such issues are often avoided by the witness having an incomplete recall of specific events.
The second of this two-part series will look at expert witnesses and trial preparation, and will examine why there is a difference of approach.