“You are not doing your job unless you take every conceivable point.” This was said to me by an eminent US 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 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 US lawyers? Perhaps the answer lies in the difference between the structure of each system.
Structure of English and US Proceedings
Both 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 US and
The similarity between the English and US 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 US 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 US 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 more US style approach and plead arguments which then 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 US pleadings, but given the fuller approach generally taken by US pleadings, requests for further and better particulars are likely to have less success than they sometimes do in England.
Both systems rely on an extensive disclosure exercise being undertaken with the obligation being to disclose all relevant non-privileged documents. Indeed, in the US it appears non-relevant non-privileged documents are often provided. This emanates partly from US lawyers being able to make lengthy written requests for the documents they expect to see and this being countered by the disclosing party almost eagerly responding 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 non-privileged documents; if one were to disclose voluminous quantities of non-relevant documents, the Court would require that disclosure to be cut down.
A valid criticism of both systems is 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.
- Factual Evidence
As to obtaining evidence before the trial, there is a significant distinction between English and US proceedings. In England evidence in chief is given by way of witness statements which are written statements of fact, which the witness signs and confirms with a statement of truth. In the US 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 them 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.
Both systems also rely on expert witnesses. 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 that was not supportive of their case.
This is undoubtedly also true in the US; however the integrity of the expert is better maintained by the expert 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 US system of disclosing all communications with the lawyers, is to be preferred.
- Trial Preparation
The other significant difference between the systems comes in trial preparation. In England witnesses are not allowed to be prepared for trial, whereas in the US they are. This means that the witness in the US 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 US 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 US 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 US counterparts.
US lawyers need not worry about taking a bad point for fear that they may be penalised 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 US counterparts in their approach. The role of any lawyer is to advance their client’s case. If a client has ten arguments then those ten 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 which the lawyer has thought almost unarguable.
In order to advance their client’s case, sometimes the lawyer has to be prepared to lose a particular argument. US lawyers do not suffer from the caution that infects many English lawyers; such bravery should be applauded.