Comparing litigation in the US versus England & Wales

But while there are similarities in the overall litigation process, there are also key differences which parties who are familiar with litigating in E&W should be aware of when conducting litigation in the US.

Pre-action conduct

In E&W, parties to a dispute are required to follow pre-action protocols, under which both parties set out their respective positions and exchange documents that are relevant to the dispute, with the aim of refining and exploring the issues in dispute. The process also allows parties – where possible – to resolve the dispute on a pre-action basis without the involvement of the court.

Failure to follow the pre-action protocols can lead to costs sanctions for the party who has not complied with the relevant protocol. As a result, E&W litigators are involved in analysing their case and providing documents early in the dispute to ensure compliance with the protocols.

Although it is not uncommon in the US for some pre-action correspondence and exchange of evidence to take place, there is no formal pre-action procedure. As a result, a defendant in US actions may have little or no knowledge of the dispute before formal proceedings have commenced – and often not until service of process has occurred, which can be well after filing the complaint at court.

Jurisdiction and precedents

E&W has the County Court and High Court system which runs through a national framework of courts. Which court is used depends on the complexity and value of the claim, and the location of the parties. Meanwhile, the US court structure involves Federal Courts and the 50-state court system, which has jurisdiction over disputes which are not subject to the federal system. The federal system is divided up into 94 districts, each being part of one of 12 regional circuits.

There is a different process for jurisdiction in the US, with a court needing ‘subject-matter jurisdiction’ – authority to deal with the subject matter of the case – and ‘personal jurisdiction’, which can be established by the defendant by, for example, conducting business in the region where the court sits.

In E&W, the Civil Procedure Rules (CPR) apply to all courts across the entire jurisdiction, subject to any variations contained in a relevant court guide, such as the Commercial Court guide. This means that an E&W litigator could conduct litigation anywhere within the jurisdiction with the same rules applying. Although Federal Rules of Civil Procedure (the FRCP) govern Federal Court actions, federal districts supplement – and sometimes modify – the FRCP.

On top of this, each of the 50 states has its own procedural laws, which means it is crucial to instruct a lawyer with knowledge of the procedural laws of the particular district or state in which the litigation is conducted. This is particularly important considering different states have different limitation periods to bring a claim.

Precedents will be a familiar concept for E&W lawyers, where a judgment of one court is binding on other courts of the same or lower level. Because courts at the Federal level in the US are divided into different circuits, a court in one circuit may come to a different conclusion than a sister court in another. When looking at the ‘weight’ of a previous judgment, more weight will be placed on a previous judgment from a court in the same circuit than a judgment from a different circuit – making local knowledge an important factor when instructing external lawyers.

Pleadings

In the US, the equivalent to issuing a claim form is filing a complaint. In most cases the claim form will be accompanied by a ‘Particulars of Claim’, in which the claimant – known as the plaintiff in the US – is required to set out and explain the basis of their claim. The claim needs to be explained in sufficient detail to allow the other party to properly understand each claim that is being made against it.

The approach to pleadings in the US is more relaxed. Although fraud claims must be pled “with particularity”, under the FRCP complaints should be “simple, concise and direct”. This can potentially lead to ambiguous pleadings and frivolous claims, with a full understanding of the claimant’s case only being ascertained during discovery, meaning that claims with little merit can be more difficult to fully comprehend at an early stage in the litigation.

Discovery

Under the FRCP, and in many state courts, parties to a dispute are required to attend a mandatory meeting to discuss various matters including a discovery plan. Under the FRCP, parties are entitled to obtain: “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Under the disclosure rules in the Business & Property Courts in E&W, parties are required to disclose documents by reference to an agreed list of issues, which in some instances may not require a party to disclose any more documents than have already been provided on a pre-action basis.

The scope of discovery in the US is much broader than in E&W. Not only that, but parties can also serve numerous requests on the other party requiring them to produce additional documents, a tactic which can often be used by one or both parties to try and gain a tactical advantage. Although in Federal Courts there is an obligation for discovery to be proportionate, E&W litigators should be prepared for the discovery process to be a time-consuming and expensive process particularly when compared to other jurisdictions.

Additionally, upon learning that a claim may arise all parties are obligated to issue what are known as litigation hold letters whereby the client is advised that all documents must be preserved, including all electronic data. Failure to preserve documents can provide an opposing party with a tactical advantage that enhances an otherwise weak claim.

Witness evidence

In E&W, although witness statements are prepared and exchanged well before trial, the trial itself is the first time that there will be ‘live’ witness evidence, with the witness’s statement standing as evidence-in-chief, and the witness then being cross-examined by the other party’s counsel. Meanwhile, in the US there is a much greater reliance on oral evidence, and parties often rely on pre-trial depositions, in which a witness gives live out-of-court evidence. This is a step in the US litigation process which does not exist in E&W.

Depositions are usually recorded and involve the deposing counsel asking the other party’s witness questions which are answered under oath. They and can be used instead of, or in addition to, live evidence from the witness at trial.

When preparing witnesses for trial, although in E&W a witness should be properly briefed on how they can best assist the court in presenting their evidence, the court strongly discourages witness training, and witnesses have been criticised by judges for being overly trained. In the US witnesses are very often trained to allow them to rehearse the answers before giving evidence at a deposition and at trial, and litigators familiar with the E&W system should expect formal and structured witness training to take place both before depositions and trial.

Jury trials

A key difference between the US and E&W is the use of jury trials in civil cases. Other than trials for defamation, civil cases in E&W are heard by a single judge. In Federal Courts a party may demand a jury trial and the case will only be decided by a single judge if this right has not been exercised.

In these cases, 12 jurors are selected in a process that allows the parties to examine the proposed jurors and object to the selection of up to three of them. Although no reasons need to be given, an objection can be resisted when a party believes that the reason for the objection is due to race or gender.

Costs

In E&W costs are known to “follow the event”, meaning the loser pays the winner’s costs, which are assessed by the court if they cannot be agreed between the parties. The costs of the litigation, and what proportion of those costs can be recovered from the other side, are factors in E&W litigation that are taken into account when deciding whether to settle a claim.

The costs burden on a party to litigation is even more of an issue in the US where, unless there is a contractual provision providing prevailing party recovery of fees and costs or a finding that the litigation was frivolous or filed in bad faith, each party is expected to bear its own fees and costs. The FRCP allows for the payment of fees and costs to the prevailing party in some Federal Court actions, but these may be restricted to court costs and not include attorneys' fees.

Co-written by Mark F. Raymond of Nelson Mullins, Miami.