Arbitraging Between the U.K. and the U.S.: Differences in the Legal Playing Field

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Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

—Abraham Lincoln

Last year, a good friend found herself sitting on a jury in a criminal court in the United Kingdom (UK), but not before being reprimanded by the judge for raising her right hand as she took the oath: “This is not America—we don’t raise our hands here.” In her defense, I would plead that a jury trial is a rare phenomenon for most U.K. citizens, whose “relevant” experience is typically limited to courtroom dramas played out on the screen.

U.K. lawyers asked about litigating in the United States cite the very many differences between the two systems: We are not just separated by a common language; we have differences ranging from the use of juries to the expense and size of claims and damages awards. The differences are substantial and go beyond the relative lack of formality in U.S. courtrooms, compared with the almost hushed and churchlike manner of U.K. courts, to more serious matters of evidence and enforcement.

Before exploring the differences between the two systems and cross-examining the perspectives, it is worth remembering that both systems—aside from Louisiana’s—have common roots and are based on common law and an adversarial approach, as opposed to the civil law and inquisitorial system evident in most continental European countries.

However, it is perhaps this adversarial approach, adopted by both systems, that is at the heart of the differences between the two and the commentary this article addresses.

“I’ll be judge, I’ll be jury,” said cunning old Fury,

“I’ll try the whole cause and condemn you to death.”

—Lewis Carroll, Alice in Wonderland