The Law: Litigation

Litigators can expect a wide range of cases to work on, but
expect a potential stack of paperwork

The Law: LitigationFor large companies, disputes are a fact of life. Every day businesses sue one another to recover lost moneies, to claim negligence or because a deal has gone wrong. This type of work is commonly referred to as contentious. Lawyers are vital for the management of these disputes, advising companies on how to deal with the issues at stake and, if necessary, helping them through long court cases.

Whats it all about?
A litigator will deal with all stages of a dispute, from the moment a company senses that there may be a problem brewing to the moment it settles. But the process of resolving the argument can take years.

Normally a solicitor is instructed at the earliest stage of the dispute. In order to stave off formal action there is often a flurry of correspondence between the claimant (the company that has raised the dispute) and the defendants solicitors. Sometimes this prevents the case from proceeding any further.

The pros:
The thrill of winning a big case
Exciting and varied work
Lots of contact with people outside your firm

The cons:
Bundling (preparing documents) can be tedious work
Some cases may drag on for years

Keep an eye out in the newspapers for the big litigation stories as they develop

However, in most cases the dispute will go further and a barrister will become involved. Barristers have the right of audience, which means they are allowed to appear before judges in the High Court and argue a case. Some solicitors, known as solicitor-advocates, are also allowed to appear before judges, but normally the specialist knowledge of a barrister is very important. See pages 44-49 to find out more about the work that barristers do.

The claimants solicitor will work with a barrister to prepare a claim and file it in court; copies of the claim are then sent to the opposing side. The case is assigned a judge, who will manage it as it proceeds. It usually takes several months for a dispute to have a full trial, but before that happens there will be case management conferences and attempts to settle out of court.

Unsuccessful parties may appeal a High Court judgment to the Court of Appeal and then to the House of Lords (the highest court in England and Wales) if necessary.

In an effort to reduce the number of cases in court, the Government has been pushing the concept of mediation, where the parties in a dispute sit down with an appointed mediator and discuss the issues at stake with the aim of reaching an agreement. Courts can order that mediation takes place even if one side does not want it.

Arbitration is also increasingly popular: this involves the case being heard by a panel of three experts, who will judge the dispute. Solicitors and barristers are still needed to offer legal advice on the case.

The working culture
Litigators are likely to have fewer late nights than solicitors working in areas such as corporate law. However, deadlines are very important, as many disputes are limited by time and claims must be filed with the court before that deadline expires. It is not uncommon for a client to sue the solicitors firm for negligence if it loses the chance to litigate because the timing has slipped.

There is likely to be a lot of contact with clients and with barristers to discuss the case as it develops. Younger solicitors will also spend a fair amount of time preparing bundles of documents for trial in large cases these bundles can fill entire rooms.

Litigators working in large law firms typically handle High Court cases, while solicitors at high street firms will advise clients on cases heard in county courts.

Why is this interesting?
Litigation is a constantly changing area of law and clever dispute management can be key to the success of a companys case. For solicitor-advocates and barristers, there is the adrenaline rush of arguing a case before some of the finest legal minds in the country. Because the UK is governed by common law (ie it has no written constitution), the biggest cases can have a lasting effect on everyday life and being involved in them is immensely rewarding.

Personal and legal skills required
Litigators need to have an analytical and intellectual mind and a strong sense of judgement. As in other areas of the law, being organised and having good management skills are key.

Interpersonal skills are also important, as there is a lot of client contact involved and it is necessary to deal with people in difficult or sensitive situations. The ability to learn quickly is useful, given the ever-developing nature of litigation.

For advocates, it is essential to be able to construct a clear argument and convey that to both the client and the judge.

Case Study

I shall never forget being in court on 2 November 2005, the 256th day of the trial in the Bank of Credit & Commerce International (BCCI) v The Bank of England case, when the liquidators finally discontinued, meaning we had won.

The liquidators of BCCI withdrew their 1bn claim for misfeasance in public office against the Bank of England more than 12 years after proceedings were issued. My firm, Freshfields Bruckhaus Deringer, has acted for the Bank of England for many years and this was the first time in the banks history that it had faced such a claim.

I first became involved in the case as a trainee in 2003. After I qualified I was pleased that my involvement continued. It was great experience to work as part of a committed team of lawyers on a trial lasting almost two years.
The most significant challenge was the volume of paper involved and the number and complexity of the legal issues raised. The witness statements alone ran to more than 5,000 pages while the bundle of core documents for use in court comprised more than 150 A4 files. A Lawtel search produces no less than 18 reported decisions for the case.

The most rewarding aspect of the case was seeing the 22 bank officials who had been individually accused of committing misfeasance fully exonerated, as well as being part of the creation of new law, in particular regarding to the House of Lords decision on legal professional privilege.

The BCCI trial was certainly a memorable start to my legal career.

Jan Golaszewski is a three year-qualified solicitor practising in Freshfields Bruckhaus Deringers dispute resolution group