Governments v lawyers – an eternal struggle?

A great deal has been written about the future of litigation in this country, but rather less so on the role of the modern-day litigator.

A great deal has been written about the future of litigation in this country, but rather less so on the role of the modern-day litigator. Indeed, according to commentators such as Richard Susskind, one day we may all be extinct. Rumours of our impending demise are, however, much exaggerated.

Governments all too often make no secret of their dislike of all lawyers, but particularly those who act for litigants. They say we charge too much; seek to fan the flames of dispute; shy away from mediation; do too little to encourage access to justice when individuals want to bring claims against private institutions; and do too much in that direction when individuals want to bring claims against government institutions.

The reality is that the reason lawyers in this country, and in many others, regularly have to work so hard is to advise on and protect clients from the neverending tide of legislation and regulation, whereby a right created here creates an obligation somewhere else, and an obligation here creates a possible sanction there. If we want fewer litigation lawyers and disputes, then governments should pass fewer laws and promulgate fewer regulations.

But the other reality is that often the reason why lawyers – including judges – are disliked by governments generally is because they stand up for the rights of citizens and clients and prevent them being steamrollered, either by state institutions or by their fellow citizens.

My own view is that 2008 will see clients promoting and defending their interests more than in any previous year.

In boom years clients have little time for litigation, as they focus on generating business and profit. Now the opportunities are fewer, and those, for example, who have suffered losses associated with subprime, will be looking for recompense. A wide range of regulators seem determined not only to introduce further regulations, but to enforce with greater vigour those that already exist.

There will be litigation solicitors who thrive and those who will not. The successful solicitors will be those who resolve their clients’ problems in a businesslike way, concentrating on adding value, not making clients’ problems even more urgent, more complicated or more dramatic than they already are. Their focus will be on understanding their clients’ businesses and the industries in which they operate, on eliminating surprises, not relishing them. Where an issue arises, these solicitors’ efforts will be devoted to exploring thoroughly the factual background to the dispute. Understanding the path that led to the problem usually explains not only how it arose, but how it should be managed in the future. The survivors will be spending time with their clients, working out with them and agreeing a strategy for the way forward to extract the client from the mess rather than pushing it further into it.

The modern-day solicitor, when dealing with the opposition, starts with what is common ground, with a view to finding further common ground. The dinosaur focuses at the beginning on what are the issues in dispute – it being unsurprising that the potential common ground then does not emerge for months, if not years.

Thankfully, and perhaps for evolutionary reasons, there are fewer and fewer of those litigators who whip their clients into a fervour of righteous indignation and who are by turns ‘amazed’ and ‘dismayed’ in correspondence. We are seeing less correspondence that is sarcastic and even malicious in tone. There was never an excuse for any litigator to sit in their office dictating silly letters that please and impress no one other than themself.

If we want to see litigation decline, let us treat each case as a war we want to win. If we want to survive and add real value to our clients, let us treat each case as a peace we wish to achieve – although, of course, if this is not possible because there are some old-fashioned bully boys on the other side, there may be no substitute for giving them a good thrashing.

Simon Davis, partner, Clifford Chance