Litigation overview, by Allen & Overy

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.

The substantive areas of civil litigation as practiced in large US firms is 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 ), 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.

While a significant degree of specialization is important to develop a deep understanding of the applicable laws and procedures, as well as the industries to which they apply, there are also areas of overlap that can spawn entirely new practice areas. In recent years, litigators with expertise in the high technology, consumer rights, security and privacy areas have developed specialties in hacking-related claims. Similarly, patent claims relating to a platform for managing risk in foreign exchange trading have reached the United States Supreme Court.

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. 
• 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, 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, intellectual property litigation, such as the patent infringement suits Apple and Samsung have brought against each other in the US, Europe and Australia, is driven by the value of patents and other intellectual property assets in the technology sector. Companies compete through litigation, which may exclude others from the market, just as they do through sales and marketing. Other areas of litigation, such as commercial contract disputes and bankruptcy litigation, may see an increase during periods of economic downturn.

Life as a litigation associate

• Research applicable law and developing 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
  
• Researching legal issues that arise throughout the course of the case, and drafting internal and client memos
• Subpoena witnesses and documents
• Coordinate, attendand conduct witness interviews and depositions
• 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-chairi the examination and defense of witnesses
• Identify assets and drafting pleadings to enforce judgments

Outside the litigation process, associates also draft articles and materials on developments in the law for publication and presentation, participate in bar associations, and contribute to pitches to new clients.

Litigation is constantly evolving through developments in legislation, case law and society.  For example, the explosion in intellectual property litigation has been driven in large part by the value of mobile technologies that did not exist just a few years ago. 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, regulatory and white-collar defense, corruption investigations and regulatory compliance, complex commercial litigation, international disputes, and intellectual property and professional liability matters. 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.

About the authors

Andrew Rhys Davies is a litigation partner in Allen & Overy’s New York office. Andrew’s experience includes representing financial institutions and individual clients in securities and other complex litigations at the trial and appellate levels, and representing corporations and individuals in regulatory investigations and litigations. Andrew graduated from Cambridge University and previously practiced as a solicitor in Allen & Overy’s London office.

Laura Hall is a litigation associate in Allen & Overy’s New York office. Laura focuses on cross-border securities and bankruptcy litigation, including a recent six-week trial held simultaneously in the US and Canada concerning Canada’s largest-ever bankruptcy. Laura graduated from Georgetown University and Harvard Law School.