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12 June 2013
Progress and advanced technology (not necessarily compatible) have drastically changed the way in which litigation lawyers must now serve their clients. Long gone are the days when the disclosed papers might comprise a file or two of key documents, when correspondence between law firms might be as fast as the Post Office would permit and when the trial judge would patiently listen to all the issues and allow the facts to unroll and the 'truth' to emerge at trial.
Today everything must be instantaneous and technologically advanced: disclosure is by electronic means; advanced photocopying guarantees voluminous files, not just of documents, but also of case law; communication is invariably by email; computerised retrieval systems are often essential; and the judge has to 'manage' the case and ensure that only the essential issues go forward to trial. The service that today's lawyers must give (and clients expect), and the conditions under which they must operate, are far different to those in the 1960s, when Mr Justice Lightman first ventured into legal practice.
In his recent lecture given at the University of Sheffield, Sir Gavin Lightman questioned whether today's lawyers are properly serving clients. He fears that the law today is less a profession than a business, in which financial pressures and inducements are replacing professional standards.
Despite Judge Lightman's doubts, for most professional firms the real driver remains to serve clients' best interests and achieve the desired result from the litigation.
Inevitably, that requires having the right expertise. However, the time has long gone when clients assumed this expertise would be found only at the bar, with their solicitor acting solely as the intermediary and the generalist. Modern-style litigation has blurred the boundaries, to the benefit of the client.
Why should a solicitors' office not provide the expertise? Why is the client not better served by having accessible and speedy advice from a partner in its law firm who really knows the subject and charges at a genuinely realistic and competitive hourly rate?
It is no duplication to then bring in an expert from the bar to deal with a particular point. Far from it - if anything, the overall cost to the client will be less, and certainly the quality of the service should be better. However, it is a myth to think that the bar necessarily provides the specialist expertise. The great skill of the top QC (and we should not doubt the skill) is the ability to turn their hand to anything. Of course, some silks do indeed specialise in particular subjects, and the conscientious solicitor will ensure that they instruct the right person for the particular job - but that expertise may well be in their own office.
Judge Lightman states that the "dominant philosophy today among firms and chambers is to place the highest premium on keeping available work for clients 'in-house'". I also deplore such a philosophy, if it exists. Herbert Smith, for example, selects with great care the right team to provide the advice and service that is needed, whether the personnel are in-house or at the bar. It would only suggest using a solicitor as junior counsel if it thought the client's interests were best served by such a course.
Indeed, the use of a solicitor as junior counsel may well reduce the cost to the client's benefit. Nostalgia for the past might make Judge Lightman forget the time when leading counsel were not permitted to go into court unless junior counsel were instructed to sit behind them, whether performing a useful service or not. Thank goodness for both clients and the profession that those times are behind us.
Putting the interests of the client above all others must be right. Commercial organisations and financial institutions are sophisticated clients. Invariably, the in-house counsel instructing the solicitor will be conversant with the litigation process; they will know the system and recognise if the practitioner is taking advantage. Such clients will not hesitate to take their work elsewhere if they believe their solicitor is not truly looking after their best interests and providing value for money.
The reality is that litigation today is more complex and demanding than it has ever been. Take, for example, the impact of the Woolf reforms. Judge Lightman is right to question the cost of litigation, but as he acknowledges, there is now more "front-end loading" of costs, which has greatly increased the solicitor's work and the cost to the client. Greater intervention by judges, often requiring the legal team to undertake considerable work at short notice, has increased the pressure on practitioners. In reality, the dream of reduced discovery has turned into prohibitive electronic disclosure, with parties often required to disclose paper and electronic copies of emails long since ostensibly deleted from umpteen computers.
No witness goes into court today without a detailed statement having first been prepared and served. Oral advocacy remains a key skill (and as always a delight to witness when undertaken properly), but written advocacy, in the form of skeleton arguments and written closing submissions, has become more significant. Much of this work is undertaken more efficiently in the solicitor's, office where all the necessary skills can be found.
Would justice be better served if we did away with the adversarial system and adopted the Continental inquisitorial system? Few practitioners would welcome such a change. As Judge Lightman acknowledges, judges do not necessarily "possess a sixth sense enabling them to 'see the truth'". Regrettably, judges sometimes get things wrong. At least with the adversarial system there is a better chance that the case will be presented fairly on behalf of both sides.
Few judges sit silently through a trial without questioning the arguments being presented by the advocates. The present system gives the advocate a chance to respond fully to all points raised. Those arguments might be rejected, but at least the client will know that its case has been fully argued and that the Court of Appeal might be prepared to intervene. If the inquisitorial judge gets things wrong, there is little opportunity for such redress. Maybe the cost will be less, but that is little comfort if the result is the wrong one.
Our present legal system is far from perfect. However, we are more likely to improve it by questioning recent reforms and looking for incremental improvements than by seeking a root-and-branch overhaul of the system itself.
David Gold is head of litigation at Herbert Smith