Henry Sherman's thesis, as a construction litigator, is that a prime cause of litigation delays is the approach of some members of the senior Bar (The Lawyer 21 May 1996).
He says that even in the most complex cases pleadings are still usually drafted by a junior. And he adds that access to leading counsel (particularly the best) at a decisive stage in the preparation sometimes borders on the impossible.
“Silks will have to roll up their sleeves and get involved in the details of major cases at a far earlier stage, even if this means having fewer balls in the air and a cut in fees,” he says.
There is both a point and a paradox here. The paradox lies in the notion that counsel so sought after as to be difficult to obtain will cease to be sought after because it is so difficult to obtain. The solution for this is for counsel to reduce the number of balls they are keeping in the air, but this will render them even more unobtainable. That said, every leader needs to recognise the significant difference between finding that Mr X is unobtainable and discovering this fact when the inquirer thought or was led to believe that he was available.
The point is that there is scope for a radical change of approach to litigation. Historically the involvement of leading counsel has tended to increase exponentially as the case approaches trial. This is not surprising. The labour involved in getting a case up for trial, particularly in the construction field, is huge and increasing. Since most cases do not fight, there has been an understandable reluctance from both counsel and clients to embark upon and pay for the process until it is clear that it is really necessary. When it is embarked upon the task is so all-consuming as to preclude any other activity.
This pattern of working is not immutable. But change requires both proportion and realism. One example that Sherman gave was of the, no doubt hypothetical, leading counsel “thought to be” at his solicitor's disposal only to be found “just fitting in a quick three-day arbitration in Chicago or South Shields”. If the hypothetical counsel was visiting either of these no doubt (but not equally) desirable places when he had undertaken to be at his solicitor's disposal, he was at fault.
Much misery can be avoided by: clarity of understanding as to what counsel has or has not undertaken; planning ahead with some precision for the involvement of leading counsel; and booking time as if it was an interlocutory hearing. It ought to be possible to work out with some degree of accuracy when and for how long leading counsel's input is required. And there is no reason in principle why space in counsel's diary cannot be booked for key decision-making purposes in the preparation stage, as for a trial.
There are, inevitably, conditions. First, it is not realistic to expect counsels to be generally available over an ill-defined period. Such a loose engagement will inevitably lead to them slipping in a little arbitration somewhere.
Second, this is a field where misunderstanding can easily be created. An enquiry in December as to whether counsel has time available in April may be met by an entirely accurate affirmative answer from a clerk anxious to help. But, unless time is blocked off then and there, it is more likely than not to be absorbed. Sherman's example does not indicate the basis on which counsel was “thought to be” at the solicitor's disposal.
Third, there is an inevitable tension between the desirable and the reasonably achievable. Ideally clients would like counsels to be on call for a substantial period, but only to pay them if called and without any undertaking to call. Counsels, with some justification – since all are pieceworkers after all – baulk at what, at worst, is a restriction on their ability to work for other clients (who may be howling for services) on the off chance they might be needed.
The aim of some of Lord Woolf's proposals is, in effect, to advance the moment when the parties are at the door of the court so that cases settle, or issues are identified and cases shortened, at an earlier stage.
I agree that this means that my branch of the profession may well need to be instructed to work up cases at an earlier stage. And I accept that preparing a case at an early stage may be as important as preparing its ultimate presentation at trial – even if, as with many of Woolf's recommendations, this inevitably involves considerably more front loading of costs. The proposal means ensuring that space which is booked in the diary as “preparing to advise on X” becomes as sacrosanct as if counsel was appearing in the House of Lords.