2 January 2008
Whats it all about?
A litigator deals with civil legal disputes, which arise all the time and can involve both companies and individuals. They include everything from the interpretation of a contract to defamation and from oil exploration rights to a fraudulent conspiracy.
Often solicitors are instructed when a dispute is first in contemplation, although they may only get involved at a later stage. Typically, a potential claim will be thoroughly investigated before any formal step is taken. Special procedural rules often require the parties to set out their positions clearly and in detail in correspondence before making a claim. Some disputes are therefore settled without any formal claim being issued.
If a matter continues, it will typically follow the same procedural steps regardless of the nature of the underlying claim or its size.
However, these procedural steps (set out in more detail below) are merely the framework for the wider considerations involved in a claim. Litigation requires numerous tactical decisions, which must be considered in the commercial context of the business of the client and the opponent, as well as the market in general. Possible issues could include: Does your client want to admit breach now or at a later stage? When is the best time to propose a settlement, and is any form of alternative dispute resolution appropriate? How is this claim affected by the recent action taken by the relevant industry regulator? Which potential witnesses of fact would be the most persuasive in the witness box? Does your client have an ongoing business relationship with the other party?
There may also be PR issues to take into account. How should your client deal with any press coverage about the claim? How will the claim affect your clients reputation? The first thing to happen procedurally after the pre-action stage is that a formal claim is made to which a defence is submitted.
The next steps then follow a timetable, usually set by the court. First, relevant documents are disclosed and considered and then witness statements and expert reports prepared and exchanged. Parties may apply to the court if an issue in dispute needs to be resolved before trial. Trial itself could last an hour or many months. The judgment obtained determines who is liable, the size of the liability and who pays whose costs and how much. Either party may appeal a judgment.
A defendant will also think about whether it should make a counterclaim against the claimant or claim against another party who may also be liable. Both parties will also consider whether to make formal settlement offers, either in an attempt to actually settle the matter or as a tactical move, including to improve their position on the question of costs.
A claim may be resolved out of court or discontinued at any stage of this process and so may take a only few months or in the case of a large claim that goes all the way to trial, like the BCCI or Equitable Life matters several years.
A large claim will involve a team of solicitors, barristers and experts, as well as clients and witnesses. The strategic and project management roles fall to the solicitors, who coordinate all the tasks to be completed in the required timescale and ensure that every step taken fits with the overall strategy.
Unlike some areas of law, litigation scales well, in that the steps and considerations involved in a small claim are often the same as those in a much larger claim, just involving smaller sums. This means that junior litigation solicitors can get the opportunity to obtain experience running small files themselves.
Most litigation practices tend to handle a variety of claims, although larger firms are likely to handle more cases heard in the High Court and smaller high street firms may have more county court cases.
A litigator will not just use their skills in a formal court setting. The past five to 10 years have seen an increase in the use of arbitration or alternative dispute resolution methods, such as mediation, to resolve claims. There are benefits to dealing with matters without formal litigation. Arbitration, which involves formal rules and an independent third party making a binding decision, allows parties to keep details of their dispute and their businesses confidential. Mediation is a formal meeting where an independent third-party mediator assists the parties in agreeing a settlement and offers a chance to save time and costs by resolving the matter outside of court.
The working culture
Litigation tends to involve deadlines of a different nature than noncontentious practice such as corporate or finance law. Although there may be urgent letters or applications that require long hours, in general, because claims follow a defined timetable, there are fewer late nights and with the foresight that a defined timetable gives you it is usually no problem to plan your life outside work.
As a junior associate, I work on about ten cases at any one time. Some of these will be small matters, which I essentially run on my own under the supervision of a partner, and sometimes I will be a member of the team on a larger case.
Solicitors often work closely with barristers to assess and progress a case. There will also be a lot of client contact, especially at the initial investigatory stage.
A trainee in a litigation department will typically be assigned pieces of research, will attend and take notes at meetings and hearings and will prepare first drafts of correspondence and procedural documents, for example acknowledgments of service or formal document lists. Trainees may also run their own small files.
Trainees will be involved in a lot of document tasks, for example assisting in document reviews and preparing sets of documents (bundles) for Court, which can run to a large number of volumes in big trials. Although such work is not the most glamorous of tasks, it is a valuable, vital and appreciated job as no one (you, the Judge, the other side) can properly understand the facts without having considered the relevant documents.
You dont have to be argumentative to be a good litigator but you do need to be academically strong and to be a critical thinker. As with all areas of law, you need to be flexible in how you work, both in the content and in working style. And you need to be able to juggle a number of issues tactical, commercial, etc beyond the black letter law. The factual and legal content of a claim could well be unfamiliar and will constantly develop, so an ability to pick things up quickly is essential. You need to be able to explain complex concepts clearly: it is your job to explain both the law to your client and the commercial/technical background of a case to the court.
Whether in court, in front of an arbitral tribunal or at a mediation or other meeting, you will consider and assess facts, law and strategy and present them in a persuasive way.
Litigation is a varied area of legal practice, which means that recent developments are innumerable, as both the detail and the whole landscape constantly develop and change. From a detail perspective, not only have there been recent procedural changes, definitive new case law comes out daily from UK and European courts.
Litigation is also affected by changes in the economy (for example, the recent decline in property prices has exposed instances of mortgage fraud) and technology (the recent trademark dispute between Apple Corps, the Beatles record label, and iPod manufacturer Apple Computer was caused by a previous failure to consider possible technological developments in music).
Peoples attitudes towards claims also affect litigation: witness for example the expected development of US style class-actions in the UK or the rise of litigation funding companies that fund other peoples litigation in the hope of a win and profit. Lots of documents, but with the challenge and variety to keep you interested: whats not to like?