Solicitors specialising in litigation actually spend only a small proportion of their time in Court and in 25 years of representing clients in high value commercial litigation and fraud cases in the Commercial Court and Chancery Division in the High Court in London I have never been the advocate and I have never had a solicitor advocate on the other side.
A good litigation solicitor does most of their work outside Court, figuring out the strategy for the claim, collecting evidence, identifying what will work and what won’t and trying to find advantage for the client. We manage the legal team, including the barrister, and the client, juggling the anxiety and the risk that comes with conflict, aiming to get the client the result they need.
Being a good lawyer is a good start but it is only a start.
The key skills are listening and guiding clients to take the right decisions – including whether to start litigation in the first place and knowing when to end it, whether by settlement or committing everything to a trial.
This doesn’t mean necessarily being especially socially skilled or charming, although that can help. It does mean being entirely on top of the issues and uncertainties and being able to communicate them coherently and express a view on what is likely to happen.
It is also important to be right as often as possible, even if what you tell the client will happen isn’t what they want to hear. Even with the best legal skills in the world, a fine appreciation of the way in which judges take decisions, and a good dose of luck, everyone is wrong a certain proportion of the time. Clients like advisors who agree with them to a point but nothing sours a relationship like telling a client they will win when they won’t and in the long term and on the big issues you have to be credible.
All litigation starts with uncertainty: will my client win or not? All claims can always be settled, you just have to pay what is demanded or drop the claim and pay the costs. It is the middle ground where it gets interesting and even entrenched attitudes change as litigation develops. The costs rise and the risks of trial focus the mind very firmly on outcomes. A good solicitor guides the client and keeps them in a position to assess their choices on an informed basis.
One view is that a good settlement is one that neither side likes but both sides can live with. I would also observe that people settle for what they need rather than what they want. Getting your client, and the other side, to one of these balancing points is difficult, fascinating and almost always a better outcome for the client then putting it all on black, giving the wheel a spin and asking the judge who wins.
I strongly recommend a year of basic psychology and a good book on game theory as essentials to build the skills to help your future clients to take the right decision.
If all else fails, and the client can afford it, there can always be a trial. In popular imagination this is where the chaps (and they still mostly are chaps) in wigs turn up (even though they mostly don’t wear wigs anymore) and do glamorous stuff. It’s a good story but if you manage a case that way you’ll mostly lose.
On day one, when a client walks through the door, a good solicitor is thinking about not just where the client is, factually, legally and emotionally, but where they’ll want to be, in a clinical, legally consistent and well evidenced way, if their problem ends up in front of a Court. A very big part of that is what the barrister is going to be arguing and how good that argument can be made.
So, a top tip is to think about what the barrister needs and to use them to shape the case from an early stage. This doesn’t mean deferring to them but rather incorporating their advice on strategy and factoring that into your preparation and management. The claims that work are the ones where there is actually some joined up thinking and the case is always focused on what might happen at trial with both solicitors and counsel iterating, developing the legal arguments according to the factual evidence and making sure that the client gets the most effective representation possible.
This is what litigation solicitors do: good luck.
Nicola Boulton is senior partner at Byrne and Partners, which was the second most active firm in the Commercial Court in 2016, according to The Lawyer Court Rankings.