Why are litigation letters often so dreadful?
30 January 2012
4 November 2013
18 January 2013
15 April 2013
18 October 2013
2 December 2013
There is no genre of literature more dismal – more utterly depressing to read – than the letters of litigation solicitors. Every day hundreds, perhaps thousands, of these wearisome missives are compiled and despatched. And many contain the most insincere and heart-sinking language.
The authors of this dreadful correspondence will invariably profess themselves “surprised” or “astonished” (or even “surprised and astonished”). They are “bewildered” and “confused” and sometimes “shocked”. If any of these assertions were literally true then the dispute resolution departments of many law firms must be in a constant state of noisy hyper-ventilation. It would be close to a national medical emergency.
The contentions of the authors are, of course, not true. The grown men and women typing out such nonsense are not in any elevated sense of excitement. They are sitting in an office. They are not convulsing at their desks in giddy emotional turmoil. In fact, their facial expressions do not change one iota from the paragraph before such claims are made to the paragraph afterwards.
So why do they bother? What really is the point of such extreme language? And why do litigators tell routinely their opponents of states of mind which are simply not present?
One reason is because litigation is too often a form of theatre. Unfortunately, it is commonly part of the adversarial process to seek to belittle or otherwise discomfort the other side. And it is a habit: the “keyboard warriors” who troll on the internet are nothing to the aggressive letter writers who lurk in litigation departments. They probably could not write in another style if they tried.
But it is all rather pointless. Sensible lawyers know this. At Herbert Smith, where I was once a junior litigation solicitor, you were told never to write that you were surprised. One may well be disappointed, the head of litigation David Gold would say, but one is never ever surprised at what the other side have come up with. He was right: surely a litigation lawyer genuinely “surprised” at the other side’s tactical manoeuvre is actually not doing the right job.
Indeed, the more reliance on emotive language, in general terms, then the weaker the case of the party. If your case is strong in law and on the facts then one does not need the rhetoric. The most devastating litigation letters are often no more than a page long; some are just a couple of sentences.
Yet such bombast carries on, for page after page. The judges do not care for it. At any hearing, they will go straight to the statements of case (prepared by barristers) and will often ignore the verbiage in the litigation correspondence, and they often seem to silently groan when they are referred to it. The other side’s lawyer will disregard anything in letters other than what is necessary to understand the current state of the dispute (before writing a similar letter in response). The only people who seem to want to write in this way are the lawyers themselves. One suspects they do it to impress their clients. It is easier to justify charging for a longer letter than a shorter one.
What makes this especially saddening is that pre-action correspondence is crucially important. Taken seriously it means that bad claims do not get traction and that good claims are settled sooner rather than later. Perhaps one day litigation solicitors will limit themselves to what the other side and the court need to know for the dispute to be properly resolved. Few would be disappointed.
David Allen Green is media correspondent of The Lawyer. Full credit to Legal Bizzle for prompting the above post.