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The author is a shareholder with Carlton Fields, New York City.
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions are decided that lawyers and their clients decide what facts they will actually try to prove at trial. And even then, they strive to preserve flexibility to respond to what occurs immediately prior to and during trial.