Transatlantic litigation toolkit

US – Complaint is the formal document filed by a plaintiff setting out the facts, legal claims and relief sought.

England & Wales – Claim Form and Particulars of Claim are the documents filed by the claimant, also setting out the factual and legal basis of the claim.

Key point: More detail is generally required for the English Claim Form and Particulars of Claim. A US complaint broadly performs the function of both the claim form and particulars of claim but is typically a less detailed document and is more frequently subject to amendment.

US – Deposition Oral testimony given under oath during discovery, usually before trial and outside the courtroom. Lawyers for all parties may question the witness and, crucially, the deposition is normally recorded by a court recorder or videographer.

England & Wales – Witness Statements Witness evidence is generally exchanged in written statement form before trial, with oral evidence being given in court during the hearing itself. Lawyers for the opposing side do not generally get the chance to question a witness until trial.

Key point: Depositions are a distinctive feature of US litigation and are often unfamiliar to English litigants.

Discovery and Disclosure both mean the process of obtaining information and documents from the parties to a dispute and third parties to assist the court in resolving disputes.

US – Discovery is typically broad and may include document requests, interrogatories (written questions), requests for admissions and depositions.

England & Wales – Disclosure is generally narrower than US discovery and the court rules encourage parties to narrow the focus of disclosure to specific issues in dispute.

Key point: US discovery is typically broader in scope and more expensive, compared with English disclosure. In both countries, it is a crucial (and costly) part of the litigation process.

US – Motion A formal request asking a court to make an order or ruling on a particular issue.

England & Wales – Application A request to the court for a procedural or substantive order during the course of proceedings.

Key point: A motion to dismiss in the US, for example, is broadly analogous to a strike-out or summary judgment applications in England, although the procedures differ.

Both terms refer to the person or organisation that starts the legal proceedings. Historically, England also used the term plaintiff but this was modernised to ‘claimant’ in 2001.