Characteristics of US litigation
US litigation encompasses a broad range of methods for resolving disputes or potential disputes, including internal investigations, government and regulatory investigations, informal negotiations, mediation, arbitration, and state and federal court litigation. Litigators are also brought in to assess litigation risk in transactions and when litigation is threatened, and to advise on aspects of US law that may be relevant to disputes pending abroad.
The substantive areas of civil litigation as practiced at Allen & Overy are vast, encompassing disputes arising out of transactions of all kinds (real estate, financial, consumer, public works, commercial contracts), administrative laws and regulations (including actions by agencies such as the Department of Justice, Securities & Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC)), enforcement of intellectual property rights, and bankruptcy proceedings. Litigation in the areas of criminal (other than white-collar crime), immigration and family law tends to be handled by smaller firms.
In the wake of the Great Recession, companies, particularly financial institutions, have seen a significant increase in regulatory investigations and enforcement actions.
Due to the globalization of the world economy, use of US law in foreign transactions, coordination among regulators and US courts’ openness to foreign parties, US litigation frequently involves an international element. Some examples:
- New York state law permits high-value contracts drafted under New York law to be litigated in New York by agreement of the parties, even if the dispute has nothing to do with New York. Parties to a New York-law governed contract may bring a contract action in a New York court and also assert other causes of action, such as fraud claims, under the law of a foreign jurisdiction.
- US litigation increasingly involves foreign companies and events that occurred abroad, and litigants frequently face similar claims in multiple jurisdictions, including the US, at once. As a result, defending or prosecuting US litigation often requires coordination with counsel outside the US to develop a deep understanding of relevant foreign law and, where parallel proceedings are involved, to develop a global strategic approach.
- A significant trend in financial regulatory investigations and prosecutions is the coordination of enforcement action among multiple US agencies (such as the Department of Justice, SEC, CFTC, and state attorneys general and financial services regulators), and between US regulators and those abroad, particularly in the UK and Hong Kong. Such investigations require banks to coordinate their responses across multiple languages and legal regimes to develop a global strategic approach, and often result in 'follow-on' litigation by private plaintiffs such as customers or shareholders.
- Foreign companies involved in US litigation have to navigate the data privacy and bank secrecy laws of their home countries (and for some, the EU as well) in responding to US discovery requests or subpoenas. Banks in particular may face a conflict between the order of a US court and the requirements of their domestic regulator if directed to freeze bank accounts or provide customer information.
Substantive areas of litigation grow or contract according to the economic forces at work in the sectors to which they relate. For example, commercial contract disputes and bankruptcy litigation may see an increase during periods of economic downturn, and shareholder litigation challenging corporate transactions may see an increase during an up economy. Similarly, in the wake of the Great Recession, companies, particularly financial institutions, have seen a significant increase in regulatory investigations and enforcement actions.
Life as a litigation associate at Allen & Overy
- Research applicable law and develop case strategy, such as the arguments to raise in a motion to dismiss or motion for summary judgment and the evidence to develop to succeed at trial
- Draft pleadings, motions, discovery requests and responses, and deposition and interview outlines
- Liaise with clients to identify, preserve and collect relevant documents
- Review documents for production and those that have been produced by opposing parties, and managing other litigation support vendors, such as data hosting companies and court reporters
- Develop a deep understanding of the facts of the case
- Research legal issues that arise throughout the course of the case, and draft internal and client memos
- Prepare presentations to investigating regulatory agencies on factual findings and legal arguments
- Provide US litigation advice for the firm’s other offices and for other departments within the New York office
- Subpoena witnesses and documents
- Coordinate, attend and conduct witness interviews
- Take and defend depositions (first and second chair)
- Assist experts in the preparation of their reports and testimony
- Prepare for and attend settlement negotiations and mediations
- Prepare witnesses and exhibits for trial
- Assist in drafting opening and closing statements
- Draft jury instructions, motions to exclude evidence and other pre-trial filings, appellate briefs, and settlement agreements
- Second-chair the examination and defense of witnesses
- Identify assets and draft pleadings to enforce judgments
- Assist clients with remediation measures in response to regulatory investigations
The best litigators are those who can shape the facts of the client’s case into a compelling story that persuades the court, jury
Outside the litigation process, our associates also draft articles and materials on developments in the law for publication and presentation, assist with preparation of continuing legal education presentations, attend internal and external trainings (such as the National Institute for Trial Advocacy deposition workshop), participate in Bar associations, and contribute to pitches to new clients. Our department also handles an array of pro bono matters, including immigration and domestic violence matters and contract disputes for not-for-profit corporations.
Litigation is constantly evolving through developments in legislation, case law and society. People who like to be constantly learning are well suited to litigation.
The best litigators are those who can shape the facts of the client’s case into a compelling story that persuades the court, jury or other decision maker. This requires excellent research, writing and oral communication skills.
A&O’s US litigation practice
Allen & Overy’s US litigation practice serves clients in complex disputes including financial institutions litigation, antitrust, internal investigations and special investigations for boards, securities litigation, real estate litigation, regulatory and white-collar defense, corruption investigations and regulatory compliance, complex commercial litigation, and international disputes. Our attorneys, who include three partners who are former federal prosecutors, have experience litigating and trying cases in a wide variety of forums, work closely with our highly ranked UK, European, Middle East and Asia litigation and dispute resolution practices to provide unmatched international coverage.