Is the one-size-fits-all approach to disputes the right one?
10 September 2007
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9 September 2013
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16 December 2013
Managing cases across jurisdictions is the Holy Grail for litigation teams.
A case in point is Eversheds. As revealed by The Lawyer last week (3 September), the firm is rolling out a new-look dispute management system that it piloted with DuPont, Transport for London and Capgemini.
The scheme, called 'Rapid Resolution', is designed to make Eversheds and in-house legal teams adopt the same approach to disputes.
Partner John Heaps, Eversheds head of litigation and dispute management, says that, by having all arms of a business working to the same legal standard, costs can be reduced as cross-border disputes can be resolved more quickly and efficiently.
The firm says its approach cuts legal costs in half, with the cost of a typical 10-day trial, generally £250,000, cut to £125,000 through early settlement.
The firm also claims that 90 per cent of all cases dealt with through this approach have been resolved out of court, while in cases where proceedings were issued more than three-quarters were settled before reaching court.
Rapid sets out a formula for all clients to follow, which includes reviewing essential facts, analysing the best practical outcomes, planning strategies, implementing plans and delivering end results.
Sounds great. But is this approach really that novel, or is it simply a rehash of an existing process? And, in practice, can a one-sizefits-all approach really work?According to Norton Rose dispute resolution partner Sam Eastwood, Eversheds' new initiative sounds like an extension of its previous early case management system.
"Instead of just being in the UK, the firm appears to have rolled it out globally," says Eastwood. "That said, it's a good idea and all firms are striving to increase standardisation across the clients that they work for."
City law firms such as Norton Rose have tended to put templates in place that lay out standard procedures that need to be followed. Eastwood emphasises: "We stress the importance, however, of ensuring that these are only guidelines and it all depends on the case and the complexity of the dispute. The question here is really how far a firm can go in standardising procedures. Should the Prague office be bound by the procedures set by London? This can't work in all cases, which is why at Norton Rose we tweak our solution depending on the client, as slavishly following a standard pro forma would never be in the best interests of the client."
Addleshaw Goddard partner and head of the firm's contentious group Simon Twigden shares Eastwood's reservations. "I don't think standardisation is always appropriate across borders," says Twigden. "At worst it can be arrogant; at best it can result in an important contribution from a fellow professional being lost. It's not a case of 'one size fits all'. Different legal systems, different cultures and different approaches to dispute resolution all need to be considered."
One law firm often perceived as a major rival to Eversheds is Pinsent Masons. Like Eversheds it has grown out of its national cocoon over the past few years to become something of a global butterfly.
Pinsents claims that it had already gone far beyond Eversheds' Rapid Resolution with its 'Reaching Resolution' scheme.
Pinsents dispute resolution and litigation head, partner Nigel Kissack, says the firm was doing what Eversheds is now doing several years ago. "The turning point had to be the momentum that came off the back of the Woolf reforms in the 1990s," he explains. "It was a question of deciding how we were going to adapt with the reforms and so we decided to take an aggressively 'Woolfish' stance."
The Woolf reforms revolutionised how the legal profession operated. It was Woolf's vision that led to an emphasis on trying to settle cases through arbitration and alternative dispute resolutions (ADRs) before even issuing a claim form.
The reforms looked to change what is often classed as front-loading, where firms are recommended to develop pre-action protocols to make sure they do not go feet first into litigation when it is not appropriate. It is also a mechanism designed to show firms the easiest routes to resolution.
Kissack says: "To ensure this we, from the outset of the reforms, introduced standard forms to ensure a more uniform way of working across the firm. At the time, however, accountants were not following suit and we found that, while we were speaking English, they were talking Greek, which slowed the system down."
This is when Pinsents came to the decision that it should have an accountant in-house, which goes beyond the Eversheds model. "It meant we were speaking the same language, but also that we could get a quick and dirty cost estimate, so to speak, to work from while the finer details were being mapped out," explains Kissack.
Now, seven years after taking on its first permanent accountant, the Pinsents accountancy team numbers six and the firm is, in fact, using more external forensic accountants than previously.
"Our solution, however, means that we can now give them more direction and specifications of what we need. This has meant that these costs have actually halved," Kissack adds.
Pinsents, like Norton Rose, therefore would agree that Eversheds' approach to handling cross-border disputes is a sensible one, if for no other reason than it has, so it claims, adopted a much more advanced version of the same process.
There are still some law firms in the UK, though, that feel standardisation is not necessarily key to ensuring efficient cross-border litigation.
Berwin Leighton Paisner (BLP) prefers to choose what it calls 'best of breed'.
BLP head of litigation and dispute resolution Jonathan Sacher says that, with a number of diverse legal jurisdictions with different laws, cultures and different ways of doing business, the firm has chosen local counsel in each jurisdiction who are entrenched there, are respected and are involved regularly in local court and regulatory matters.
"It's these counsel who'll be ideally placed to provide the best service in these jurisdictions," explains Sacher.
The BLP method is apparently to 'assimilate' the cross-border elements using its specialist partners in London, who operate internationally. These partners will identify the international elements that need urgent attention and will choose an office, either from its own network or externally, that it feels is best suited to deal with the dispute.
BLP litigation partner Alex Gordon says the firm does not want to be "hampered by having to select the BLP foreign office", and instead accesses its "best-of-breed network, which provides clients with the optimum technical excellence and level of responsiveness".
Sacher says: "Standardisation of business practice internationally, to prepare for risk and crisis, is achievable, but not without difficulty. Procedures and response methods need to be adapted to suit the different environments of very different countries with complex and varied laws and regulatory regimes."
Overall there is a strong feeling that standardising procedures globally can be a positive, so the Eversheds model gets a thumbs-up, but the legal profession continues to be wary. Don't forget the main aim: no, not to drive down costs, but to ensure the best service to the client.