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
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.