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Litigation: The differences between English and U.S. litigation

How the two systems treat pleadings, disclosure and factual evidence

“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.

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. 

Contributing Author

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Neville Byford

Neville Byford is a partner in the Commercial Dispute Resolution group at international law firm Eversheds. He specialises in international arbitration and commercial litigation.

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