knowledge 13 August 2015 |

European Dos and Don’ts for US Litigators

No coaching of witnesses

Local lawyers in Ireland or England often counsel “no coaching of witnesses” to US lawyers seeking evidence in Europe for US proceedings or who are helping US clients in litigation in Europe. Obviously, lawyers must not encourage or cause witnesses to give evidence that is untruthful or that distorts the truth. Lawyers are bound to maintain professional objectivity and to adhere to high ethical standards. However, the maxim is often misunderstood.

Experienced lawyers know that most witnesses need guidance. The lawyer tenders the evidence of the witness to the court in support of the client’s case and the witness may be unfamiliar with litigation and understandably very nervous about appearing in court.

The lawyer will wish to explain examination in chief and cross-examination, and what happens in depositions. The lawyer will also show the witness relevant documents. The witness needs to know about the issues in the case that are relevant to his or her evidence and about the need to take time in answering questions and to seek clarification where a question is unclear. Indeed, in many countries, such as Ireland, the lawyer will assist witnesses of fact in drafting witness statements, which in business litigation may be used as the basis of the witness’s examination in chief.

In some European countries, there may be restrictions on lawyers interacting with witnesses, even in aid of foreign proceedings. However, don’t take a “no coaching” warning at face value - ask exactly what is meant by that and explain what you would like to discuss with the witness. You probably will find that what you intend to do is perfectly ethical and legal.

Experts – guns for hire or disinterested savants?

US lawyers may find the role of experts in Europe strange. In France for example, as in many other civil law countries, the judge picks an expert from a list of experts that the courts have approved, from different specialisms and professions, on grounds of competence and independence. The expert prepares a report which he or she may circulate for comment by the parties. Parties may seek to submit reports from their own experts but these may be given much less weight by the court than the court’s expert’s report.

In England and Ireland, which are common law countries, without juries in most cases, experts have a similar role to experts in the US. However, particularly in England, courts have emphasised that the expert’s over-riding duty is to help the judge come to a correct view of the technical or scientific issues.

This may create confusion in an expert’s mind. After all, the expert is being paid (usually well paid) by the client. The client’s lawyers call the expert to support the client’s case. This over-riding duty could oblige the expert during trial to alert the court to a point which everybody else has overlooked and which would damage the expert’s client’s case. Happily, the issue rarely arises in practice. In most cases that proceed to trial, the expert issues are fully addressed through compulsory pre-trial exchange of experts’ written statements (there are no depositions) and cross-examination. Experts know too that their good name could be harmed by a lack of frankness.

So the role of the expert and how he or she gives evidence may differ from jurisdiction to jurisdiction. Making sure that the expert understands what is expected in an unfamiliar court is an important part of the lawyer’s job.

Impeaching experts

Lawyers in Ireland and England tend to be wary of impugning an expert’s credentials or competence on cross-examination unless the expert is clearly biased or incompetent. In continental European countries, experts in court are treated with much deference, as they are court appointed and distinguished academic qualifications carry great weight in the court’s eyes.

So, experts from Europe, and in particular from civil law countries, may be quite unused to the stresses and strains of the US adversarial system, and in particular depositions and impeachment. Picking such experts carefully and briefing them fully on the task ahead is therefore essential.