Litigation / Dispute Resolution

What’s it all about?

The term dispute resolution encompasses a range of procedures used to resolve disagreements. The most familiar type is litigation which involves an adversarial court process, but other less adversarial methods of dispute resolution have also become popular. Alternative solutions include mediation, arbitration and expert determination.

The key advantage of these alternatives to litigation is that they take place in private, avoiding the publicity associated with the courtroom. Becoming a litigator is a notably different career path to becoming, say, a transactional lawyer. The key differences between litigation and transactional forms of law are:

– The subject matter varies widely from case to case, even if you specialise in acting for a particular type of client.

– The work is adversarial in nature. Unlike in transactional departments where there is a common goal, in litigation the interests of your client are directly opposed to the interests of the other side.

– Clients are more likely to be nervous, emotionally involved or reluctant than in a transactional department where they are generally motivated to complete a deal.

– Every day is different and it is unusual for a day to go by without one learning something new. Typical tasks include taking notes at client meetings, drafting correspondence, drafting witness statements, attending court hearings, conducting legal research, producing notes of advice, reviewing documents and instructing counsel.

The working culture

As with any practice area, much depends on the firm and the type and size of the cases involved. Litigious matters tend to last for a longer time than transactions in the finance and corporate departments but they are generally less intense. For example, in corporate you might work for three months on one M&A deal and then have a short quiet period before the next deal comes along. Conversely, in litigation you might find yourself working on four small matters simultaneously, some of which could stretch over a year. It is unusual to see a matter through from beginning to end during the course of a trainee seat.

Litigators do not generally experience the peaks and troughs in hours associated with transactional practice areas (cases run to timetables set by the court), but that is not to say the hours are never long. If several matters become busy at the same time you might have to juggle them and if something urgent comes through the door, such as an injunction, expect to work late.

What other practice areas do litigation lawyers work most closely with?

Litigators may be involved with providing advice on contentious issues that face colleagues in different practice areas. Equally, they might call on colleagues from different practice areas to provide advice on non-contentious issues. For example, a company director who has engaged litigators to bring an unfair prejudice petition against the company might also require employment advice if they fear being dismissed.

What phrase is a litigation lawyer most likely to use and what does it mean?

A phrase used frequently by litigators is ‘The White Book’. This refers to the book containing the Civil Procedure Rules which set out the process to be followed in court proceedings in England and Wales.

A typical case begins with the service of a claim form and particulars of claim by the claimant, followed by the defendant’s response by way of a defence and, potentially, a counterclaim. The parties then disclose relevant documents to one another and prepare witness statements and expert evidence. There may be case management conferences held before trial, at which various applications are typically made by the parties. There is then a trial and a costs hearing after the judgment is given. The lifespan of a case can be anything from a few weeks to several years. Very few cases proceed all the way to trial – most are cut short by the parties agreeing settlement terms or a successful application to the court to strike out one party’s case.

Skills required

Litigators need a strong grasp of fundamental legal principles. Because the subject matter of each case is so different dispute resolution lawyers tend to spend more time doing legal research and reading cases than their peers in other practice areas.

Excellent communication skills, both written and oral, are essential. Litigators need to construct forceful and eloquent arguments on paper and in person – for example, in a mediation or other scenario in which lawyers need to negotiate or make submissions on behalf of their clients. It also helps to have a strategic and creative mind. Litigators must always have as their objective the best outcome for their clients, and achieving this often involves making tactical decisions and coming up with inventive solutions.

Recent developments

Litigation is countercyclical in nature, which means the credit crunch has been keeping litigators busy. During good times businesses are sometimes happy to overlook low value disputes but at the moment nobody can afford not to enforce a debt or pursue a claim. For example, there has been a rise in the number of lawsuits relating to deals that went wrong and investment products that lost value.

Another product of the recession has been an increase in regulation, particularly in the financial services sector. Lawyers involved in this type of work can find themselves defending corporations against regulatory action by bodies such as the Financial Services Authority or the Office of Fair Trading. Recent high profile cases have drawn attention to the expensive and time-consuming nature of trial litigation. This has led to an increase in the popularity of alternative dispute resolution tools such as arbitration and mediation.

Emily Lew, associate, Herbert Smith