The revolution in litigation starts from the bottom
29 September 2003
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5 November 2013
Many City trainees who want to qualify into corporate, property or banking do not much like the idea of spending three to six months in a litigation seat. This is as obvious as the fact that most seven-year-olds will not voluntarily eat their greens. So, like harassed parents pestered into letting their children survive on a diet of Dairylea Lunchables and Tizer, Clifford Chance and Linklaters have made litigation training non-compulsory for their trainees.
Now at these two magic circle firms, those scary individuals who decided they wanted to be asset finance lawyers at 15 can bypass litigation altogether, as long as they take a short course at a law school - Nottingham for Clifford Chance and the College of Law for Linklaters - and do a bit of pro bono work.
Fine, some might say. Litigation is not for everyone and no dispute resolution partner wants disinterested wannabe corporate lawyers standing forlornly by the photocopier for six months. But no one can deny that litigation is at the heart of the law and that all City lawyers should at least know the basics of how commercial dispute resolution works in practice.
As one law firm partner so illustratively puts it: "Litigation breathes life into writing a contract." What he means is, if you do not know about the possibilities of when litigation may rear its ugly head following a deal, you may be stuffed later on. Clifford Chance and Link-slaters have mystified many in the market by seeming to bypass such wisdom.
Clifford Chance has signed up Nottingham Law School to provide a long-weekend litigation course for the trainees who opt out of contentious work. They will then learn the practice of writing scary letters by volunteering at one of the London law centres the firm is involved with for one evening a week over six months. Then, that's it. No more contentious work for them. Linklaters is running a similar scheme with the College of Law, which will put the trainees on a theoretical course and require them to help out at its own pro bono clinic.
But will the law centres provide trainees with the experience needed to make a £500m deal litigation-proof? Writing to Mrs Smith's former landlord about a breach of the tenancy agreement, or Mr Bhattcharya's former employer on his unfair dismissal, is a lovely thing to do, but in-house commercial litigation experience it is not.
The other obvious question mark hangs over both firms' strategic view of the importance and status of litigation. Clifford Chance, with its burgeoning litigation department, and Linklaters, which whether by accident or design has been shrinking its litigation practice for a while, have mysteriously arrived at the same point when it comes to litigation training. And that looks nothing short of weird.
The two firms say this is a question of resource. There are simply too many trainees to give everyone a three to six month seat in the litigation department. This is entirely consistent with recent activity at Linklaters. Several years ago, the firm introduced a month-long litigation short seat to get around this problem, and this is what the College of Law/pro bono initiative is replacing.
Last year, Linklaters moved litigation lock, stock and barrel into its commercial group. It is doubtful that there are enough litigation partners around to train everyone and this fact alone has forced Linklaters to outsource some of its litigation training.
But Clifford Chance? The world's biggest firm is committed to litigation and has a large and highly successful department. Litigation billed more than both corporate and banking at the firm last year and average revenue per partner in the department, at £1.7m, beat the firmwide average of £1.5m. The firm has a whopping 134 litigation partners compared with 193 in corporate and 220 in finance. Meanwhile Allen & Overy (A&O), which has just 96 litigation partners compared with 162 in corporate and 184 in banking, has a much larger differential to deal with, but is not facing Clifford Chance's logistical problem.
"We don't have the numbers problem, and nobody needs to have that problem," says one A&O litigation partner. "We plan our intake in advance so that the number of trainees allows everyone to gain three to six months experience in all of the core departments."
For Clifford Chance, then, the answer must reside in the attitude of the trainees themselves. You can take them to court, but you cannot make them think. Times are hard, and why waste a partner or senior associate's fee-earning potential making them try to motivate young lawyers who roll their eyes in horror at the thought of leaving the data room? Much better to send such trainees down to a law centre so they can add value to the firm's pro bono offering.
So why are some young lawyers uninterested in getting litigation experience?
Most City law firms look more and more like investment banks. Perhaps the whole perception of what it means to be a lawyer has changed. Just take television as a barometer. Older lawyers grew up on a court-heavy diet of Rumpole of the Bailey and Perry Mason. But Trust, the most recent prime-time legal drama, had its main protagonist memorably exclaim: "I'm a corporate lawyer and I do corporate law!"
Many trainees at Clifford Chance or Linklaters will want to work on the headline-grabbing M&A deals or restructurings the firms are famous for and will see litigation as an unnecessary obstacle in their scramble towards corporate or banking.
Okay, Linklaters can no longer accommodate all its trainees in a litigation seat, but perhaps partners at Clifford Chance should take a more heavy-handed approach to the skills their transactional lawyers need to be good at their jobs.
The idea of a City lawyer who has never seen the High Court is as difficult to swallow as that of a teacher who has never set foot in a classroom. When Clifford Chance moves, others invariably follow. But before they do so, firms should ask themselves whether City law should be so quick to disassociate itself from its roots.