USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
tor–patient privilege). The exceptions will also vary based on jurisdiction, with federal law and state law providing for different exceptions and varying nuances therein. Further, there are some documents that may be considered confidential by the parties but, because they are not privileged, may not be withheld. Nev- ertheless, the parties may take certain measures to protect this sensitive information, such as limiting who may view the confidential information or sealing the information from the public record. 8.4 Witness Evidence The legal system differentiates between lay and expert witnesses. Lay witnesses are fact witnesses who may testify about people or events they personally expe- rienced or about which they hold first-hand knowl- edge. Expert witnesses, by comparison, must hold scientific, technical, or other specialised knowledge and be recognised by the court as qualified to offer expert opinion on the subject about which the expert is asked to testify – whether it be through knowledge, skill, training, education, or experience. Before trial, witness evidence may be gathered, reviewed, and preserved by parties to litigation dur- ing the discovery period, subject to the procedures and protections previously outlined. Once the par- ties proceed to trial, they most commonly present witness evidence via live witness testimony. During both pre-trial depositions and trial testimony, parties have a right to cross-examine their opponent’s lay and expert witnesses. During cross-examination, a party may challenge the witness’s opinions and explore the credibility (or lack thereof) of the witness’s testimony by asking questions that may expose the witness’s bias, motive, poor memory, and/or inconsistent state- ments. 8.5 Expert Evidence Expert evidence is permitted in both federal and state courts in the United States. It is common for parties to hire their own experts and, under the American Rule, they must personally pay their experts hourly rates and other expenses. Alternatively, a court may appoint an expert on its own or by a party’s motion. The court may appoint any expert of its own choosing or one on which the parties agree. The court must inform the expert of their duties, which include:
• advising the parties on any findings the expert makes; • submitting to deposition by any party; • being called to testify by the court or any party; and • being cross-examined by any party.
9. Enforcement 9.1 Enforcement of Judgments
A total of 48 states and the District of Columbia have adopted the Uniform Enforcement of Foreign Judg- ments Act (UEFJA), which sets forth the procedure to enforce a foreign judgment. In general, the 50 states will recognise and enforce judgments entered by their sister states (“foreign judgments”), giving the foreign judgment “full faith and credit”. Under the UEFJA, a judgment creditor may request a court to recognise and enforce their foreign judg- ment by filing (i) an “exemplified copy” of the foreign judgment, which is a court-authenticated copy car- rying three layers of verification, including the court clerk’s certification, the judge’s confirmation of the court clerk’s authority, and the court’s seal; and (ii) the judgment creditor’s signed affidavit declaring the mailing information of the judgment creditor and judg- ment debtor, a statement that the foreign judgment is valid and enforceable, and a description of the extent to which the foreign judgment has already been satis- fied. Once the foreign judgment is filed, it is treated as if it is a domestic judgment, subject to the same procedures, enforcement, and defences to enforce- ment. The judgment creditor is empowered to bring a civil action to enforce their judgment and collect against the debtor. 9.2 Enforcement of Arbitral Awards The prevailing party to an arbitration proceeding may enforce their award by “confirming” it with a court hav- ing jurisdiction over the parties and claims. Refer to the Trends and Developments article of the Chambers Dispute Resolution 2026 Guide for the USA (nation- ally) for a more in-depth discussion on this point.
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