Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

Litigation begins with a complaint or petition filed by the plaintiff, which commences the lawsuit. The defendant might move to dismiss this pleading as facially insufficient. If not, or if dismissal is denied, the defendant files an answer to the allegations in the lawsuit. Next is discovery, where the parties exchange relevant documents, respond to written questions or requests to admit or deny allegations, and depose potential witnesses. Usually at least one party will move for summary judgment before trial based on the discovery record. If summary judgment is denied, the case goes to trial. The losing party generally has the right to appeal the final judgment.

Sources:

  • Westlaw Practical Law, ‘Litigation and Enforcement in the United States: Overview’.
  • Fed R Civ P 8, 12, 26, 30, 31, 33, 34, 36, 56.
  • Fed R App P 3, 4.
  • 28 USC § 1291.
  • NY CPLR §§ 3011, 3018, 3037, 3211, 3212; ibid., articles 31, 40, 41, 42.
  • Tex R Civ P 22, 78, 79, 83, 84, 85, 91a, 166a, 190–215.
  • Tex R App P 25.1, 26.1.
Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes, in many ways. For example: (1) plaintiffs might amend their pleadings to add new defendants; (2) joinder of a non-party might be required if the court cannot provide complete relief among the existing parties without the non-party’s presence; (3) a non-party can be impleaded as a ‘third-party defendant’ if it may be liable to an existing defendant; and (4) a non-party can seek to intervene in a case where, for example, it has a claim or defence that shares a common question of law or fact with the case.

Sources:

Consolidating proceedings

Can proceedings be consolidated or split?

If proceedings before a court involve common questions of law or fact, a court may consolidate them. The court also has the authority to hold joint hearings or trial on matters common to the proceedings rather than fully consolidate them. A court may order that a proceeding have separate trials for separate claims to avoid prejudice to the parties or to expedite and economise a proceeding. A court also may sever any claim against a party to avoid prejudice or to promote efficiency.

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Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

In a jury trial, the court will typically submit a ‘jury charge’ to the members of the jury. This document will ask a series of questions about the claims and defences that the parties have argued for before the judge. Once the jury fills out this document with its answers, the judge will confirm the findings and apply them to the law, as necessary, to issue a final order. In a civil trial, the burden of proof is typically the preponderance of the evidence, which means more than 50 per cent. The plaintiff typically has the burden of proof with a claim, and the defendant has the burden of proof with an affirmative defence.

How does a court decide what judgments, remedies and orders it will issue?

The court’s decision on what judgments, remedies and orders it will issue is guided by the legal precedent and statutes of the jurisdiction involved. Sometimes judges have a great deal of discretion, and sometimes they are essentially formalising remedies identified by the jury, or even by statute, for a particular claim.

Evidence

How is witness, documentary and expert evidence dealt with?

In most complex commercial litigation matters, discovery is staged. The parties first negotiate the parameters of document discovery. They then review and produce documents. The parties then use the documentary evidence to prepare for oral depositions of witnesses. Typically, fact witnesses are deposed first and then expert witnesses are deposed. Parties can gain a tactical advantage in the case by carefully crafting discovery requests to uncover all of the documents relevant to their claims and defences, and then using this information to select witnesses and craft questions for them.

How does the court deal with large volumes of commercial or technical evidence?

Courts rely on the parties to streamline the evidence that will be provided to them. The parties are expected to become masters of the evidence and to present only what is relevant in coherent and persuasive briefs. In order to do so effectively, parties often rely on commercial or technical experts who can concisely explain the relevant points.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

The US is a party to the Hague Convention on Taking Evidence Abroad (The Hague Evidence Convention). The Hague Evidence Convention allows transmission of letters of request from one signatory state (where the evidence is sought) to another signatory state (where the evidence is located) without recourse to consular and diplomatic channels. Outside of the Hague Evidence Convention, a witness in the US cannot be compelled to give evidence in or to a foreign court.

However, under 28 USC § 1783, known as the Walsh Act, a court of the US may issue a subpoena to a US national or resident who is in a foreign country, requiring his or her appearance as a witness. The Walsh Act is an exercise of the power of the US over its citizens and does not allow courts to issue a subpoena on an alien outside the US.

If a party is seeking to compel a foreign witness to give evidence related to a patent proceeding, the party must file a miscellaneous motion for authorisation identifying the foreign country and explaining why the party believes that the witness can be compelled to testify in the foreign country, including a description of the procedures that will be used to compel the testimony in the foreign country. The party must also demonstrate that it has made reasonable efforts to secure the agreement of the witness to testify in the US but has been unsuccessful in obtaining the agreement, even though the party has offered to pay the expenses of the witness to travel to and testify in the US (37 CFR § 41.156).

Outside of the patent context, there are no other mechanisms by which the US can compel a foreign witness to give evidence, besides the Hague Evidence Convention, discussed above.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

There are large volumes of rules and best practices that govern how to admit testimony and documentary evidence at trial. These rules vary by jurisdiction and are absolutely essential to study and master before going to trial. Generally, for documentary evidence, the rules ensure that the evidence being offered is authentic and not prejudicial or unfair to the other party in some way that impacts rights of due process. For testimony, there are rules about what a witness can recite, such as the ‘hearsay rule’, and witnesses must be subject to cross-examination.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

Trials can range from 15 minutes, in the case of an uncontested proceeding, to more than a month. The length of the trial depends on the preferences of the judge, the complexity of the claims and the requests of the parties. Trials can be expedited, up to a point, by the agreement of the parties or in a jurisdiction where the court moves matters quickly. In large commercial disputes, it is common for proceedings to extend over a week.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

The best way to gain tactical advantage in a case is to identify the key legal and factual strengths and weaknesses of each side early on in the case and to explore the procedural challenges and substantive arguments that will maximise the chances of a positive outcome. Motions for summary judgment, special exceptions, motions to dismiss and venue challenges are just some of the available procedural steps. The schedule for discovery, the amount of discovery requested and the overall case schedule are also important and should be considered early.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Third-party funding of a plaintiff’s lawsuit may have the following effects, among others:

  • it can encourage a plaintiff to file a lawsuit that it otherwise would not, since the plaintiff typically does not have to repay the funder if the plaintiff does not prevail in its lawsuit;   
  • it can prolong litigation where the plaintiff would otherwise be unable to pay for continued litigation efforts;
  • it can complicate discovery due to potential privilege waiver issues and discovery into communications between the plaintiff and third-party funder; and
  • it can prolong litigation by discouraging a settlement if the funder can assert influence over settlement discussions and encourages the plaintiff to decline offers below a certain monetary threshold, thus ensuring a higher return on the funder’s investment.
Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

Following the closures of physical courts in the wake of the covid-19 pandemic in 2020, technology has taken on an increased role in complex commercial litigation. For example, witnesses are often deposed remotely and hearings are often conducted remotely. Most courts have transitioned to paperless, electronic filing systems. Finally, technology-assisted document reviews are permitted, but, in practice, seldom occur.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

There is no standard procedure for dealing with parallel proceedings (eg, regulatory or criminal proceedings) to complex litigation matters. The key to gaining a tactical advantage is coordination between the attorneys representing the client in each of these matters. By doing so, attorneys in each matter can benefit from the knowledge of the attorneys in the other matters. Private prosecutions are not permitted in this jurisdiction.

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