In the first of this two part series, I examined the similarities and differences between English and U.S. litigation, looking at the approach to pleadings, disclosure and factual evidence. In this article, I will look at expert witnesses and trial preparation, and examine why there is a difference of approach.
Structure of English and U.S. Proceedings
The use of expert witnesses is heavily relied upon in both English and U.S. litigation. In England the system has developed whereby experts are, quite rightly, often seen as nothing more than “hired guns.” Experts work closely with the lawyers instructing them, and it would be astonishing if a party called an expert who was not supportive of their case.
This is undoubtedly also true in the U.S.; however the integrity of the expert is better maintained by the experts having to disclose all communications with their lawyers. In England the only communication disclosed, apart from the final report, is the initial instructions, which are often deliberately bland so as to be of minimal assistance.
Since an expert is really there to assist the court, the U.S. system of disclosing all communications with the lawyers, is to be preferred.
The other significant difference between the two systems comes in trial preparation. In England, witnesses are not allowed to be prepared for trial, whereas in the U.S. they are. This means that the witness in the U.S. can often appear rehearsed, and it is more difficult to break down that witness. Further, a huge amount of time and effort is spent on preparing the witness, something which would be viewed with suspicion in England because of the belief it would taint the evidence of the witness.
As the aim of the system is “for the truth to come out”,the inability to prepare the witness is preferable.
Why is there a difference of approach?
While there are differences between the two systems, in many ways the systems are very similar. The respective differences do not really explain the fundamental differences in approach between English and U.S. lawyers, as highlighted by the comments at the beginning of this article. In my opinion, the underlying difference comes down to the fact that in England the losing party has to pay the winning party’s costs, whereas in the U.S. each side will generally bear their own costs. This difference of approach perhaps plays to the more cautious nature of many English lawyers and the more adventurous approach of their U.S. counterparts.
U.S. lawyers need not worry about taking a bad point for fear that they may be penalized in costs. Likewise, they need not worry about overloading disclosure and then having some costs award against them for failing to be precise in what they defined as relevant.
In contrast, English lawyers are concerned by those points. An English lawyer would not want to win on three arguments and lose on two because if they did they may not recover all their costs; better just to win on one point and hence the desire only to run your “best” argument.
Which system is better?
The simple and perhaps trite answer is both systems have their advantages and disadvantages.
In both, the pleadings and disclosure have become formulaic and do not really progress the case as far as they should.
The advent of witness statements in England has made a significant difference. It means that you can get to the heart of the case much more quickly. It will reveal weaknesses in the other side’s case—most obviously if a key witness does not put in a witness statement. In contrast, depositions are less precise and therefore of less assistance.
However, having praised the English system for its use of witness statements, I do think that English lawyers can learn from their U.S. counterparts in their approach. The role of any lawyer is to advance their client’s case. If a client has 10 arguments then those 10 arguments should be run. The fear of being embarrassed by running an argument that fails should not stop that argument from being advanced. The judge may like an argument that the lawyer has thought almost unarguable.