Roundtable: The globalisation of disputes with Radcliffe Chambers

It was a fitting scene as senior in-house lawyers, private practice litigators and members of the Bar gathered for a virtual roundtable to discuss the globalisation of the disputes landscape.

That virtual environment has become increasingly common for litigators, particularly since the coronavirus pandemic put the brakes on international business travel. Globalisation and the evolution of communication has ramifications for the building of intelligence networks needed to successfully work on modern disputes.

This roundtable session, co-hosted by Catrin Griffiths of The Lawyer and Shantanu Majumdar QC and Christopher Boardman QC of Radcliffe Chambers, sought to understand the factors which lay at the heart of the modern client-solicitor-barrister dynamic, the importance of relationships, and how to successfully collaborate in an increasingly globalised, and virtual, environment.

The session built upon research conducted in collaboration between The Lawyer and Radcliffe Chambers over the summer, looking at the role of the Bar in modern business disputes.

That research revealed an interesting data point: 63 per cent of those surveyed believe that globalisation changes how commercial disputes need to be run. A further 37 per cent believe that this impacts the way that legal teams are put together.

Globalisation is occurring, and co-operation is increasingly important as disputes are spread across different jurisdictions around the world. “The key pain points for me are managing my litigation across each of those markets where rules, processes and the ways of doing litigation can differ greatly,” said an in-house lawyer.

The need for collaboration

As the roundtable attendees broadly agreed that globalisation fuelled the need for collaborative teams on disputes, attention turned to what constitutes an ‘effective team’. One private practice lawyer said that in most instances “the barometer is; what is the most effective team for the client in this case?”

For another in-house lawyer, an effective team is one that adds a level of value beyond what an in-house team could reasonably offer on their own. “I’m very used to my way of thinking, and good at understanding my internal way of thinking. But I’m missing what other people in the space are doing around market practice and throughout the industry as a whole. This is where solicitors can add a great deal of value. When it comes to that very forensic level of examination, that’s where the Bar is very strong.”

To ensure that this value is added, teams need to collaborate from the initial phase of a given dispute. Attendants from the in-house and private practice worlds, as well as the Bar, were all in agreement that it is important not to become a ‘post-box’.

Technology here is key, as Christopher Boardman QC of Radcliffe Chambers explained: “Technology has helped to internationalise what we do by helping us to meet virtually, share workspaces, and to share documents online with both sols and clients. We can work on the move, while travelling. We can have more regular direct contact and collaboration with clients and the other professionals involved in a case.”

This requires all parties to be on the same wavelength with regards to communication methods, deadlines, and delivering on client expectations. When parties do collaborate successfully, it can make for a more fulfilling professional experience, explained Shantanu Majumdar QC at Radcliffe: “If one is adaptive and open minded it can make one’s job much more interesting as well as making it a much more fulfilling and satisfying experience for the client from a commercial perspective”

Direct instructions. Keeping it in-house

It would not have been a usual discussion between the various branches of the law without some friendly rivalry. Conversation soon turned to instructions, and where those instructions come from for both solicitors and barristers. While the traditional dynamic of barristers receiving their instructions from solicitors remains strong, the landscape here is changing. Some in-house teams are increasingly comfortable to keep work in-house, while barristers are building their own networks, which in turn is leading to direct instruction.

That said, when asked if they’d ever used a barrister on a direct access basis, 48 per cent of survey respondents hadn’t done so.

One private practice lawyer elaborated on this during the roundtable session. “I’m surprised when I receive instruction directly from the Bar. QCs typically want to stick to law and advocacy, and to avoid managing clients, documents and bundles. This is where solicitors can come in and work collaboratively.”

One attendee had recently shifted from a private practice role to a senior in-house position at a major telecommunications company, and was surprised by how much work can be done internally within an in-house team. “We have very experienced lawyers in our team we have, and I think a lot of solicitors don’t appreciate quite how much we can handle ourselves.”

This, the lawyer explained, could drive an increase in direct instructions to barristers, as in-house teams only need advice on specialist areas of the law.  “This can drive going direct to barristers depending on subject area and types of cases. If its something we haven’t dealt with before, like an interpretation of a specific contract, we would contact a barrister and then deal with the consequences in house – because we can.”

Intelligence networks

While taking on new streams of work can drive the building of new relationships, existing relationships and recommendations from trusted colleagues are essential in building strong intelligence networks that can last for an entire career.

This, explained Radcliffe’s Shantanu Majumdar, can begin with secondments. “We are increasingly seeing the value of secondments and in establishing relationships with particular organisations. This is tied to the wider issue of developing an understanding and contacts in the wider market. We can all benefit from making reliable recommendations – but just coming up with suggestions isn’t good enough, it has to be a good recommendation.”

Attendees were broadly keen to stress how important making the right recommendation is for the reputation of your firm or organisation. This is particularly pertinent for in-house professionals. “Your choice of adviser in these jurisdictions isn’t just a point of getting things over the line, it can reflect on you as an inhouse lawyer within your organisation. You essentially put your neck out to recommend a lawyer or barrister, and if it doesn’t work out it reflects poorly on you,” says Catrin Griffiths.

A poor recommendation can not only reflect poorly on you, but on all members of a disputes team. On the flipside, a stellar recommendation is good news for all parties. “Who we choose, whether its counsel, another law firm, reflects on us in the same way that the in-house lawyer’s choice of external solicitor reflects on them,” says one private practice lawyer.  “My job is to make the in-house counsel when there is one, look good. It is emotional intelligence, that is what drives strong relationships and collaboration.”