Empty vessels make the most noise……

Discussion on litigation styles and the need to focus on issues rather than being purely aggressive.

13 February 2014

When Shakespeare said we should kill all lawyers he was not referring to Magic Circle corporate or TMT partners, they had not been invented yet; and conveyancing and private client work were in their infancy.  No, what he had in his sights were litigators and two hundred and fifty years later Dickens aimed his withering fire at the chancery lawyers in Bleak House.  Where does that leave us in the 21st century?

In the middle ages important people would choose their champions to fight on their behalf and presumably picked them for maximum aggression, ruthlessness and brute force.  Litigation solicitors are sometimes compared to those champions, but is that a fair, or even an enviable, comparison?

What do you, the client, actually want in your solicitor – and is that what you get?  Of course you want someone who knows the ropes, who is in your corner and will stand their ground.  You don’t want a lapdog but do you necessarily need a Rottweiler, who will snap at every sign of trouble and whose only mode seems to be attack?

Not so long ago, litigation in England was conducted like war.  Strategy was mixed with the element of surprise, trial by ambush was the norm and cases frequently changed course because of unexpected events.  Now we have exchange of witness statements, so neither the identity of those who might appear at trial, nor what they are going to say, is a surprise.  Of course cross-examination (famously once described as the art of not examining crossly) can still unearth nuggets of information, but a well-organised legal team should have planned for most eventualities and, after all, is that not why we spend so much of our time - and your money - on disclosure?  The emphasis of judges, freshly-trained in the art (science?) of case management is on promoting settlement where possible, dealing with disputes efficiently where not; and in all cases trying to limit the burgeoning costs of litigation.

What was a campaign with all the military overtones of that word has become a process designed to produce the smooth management and settlement of disputes.  Of course, commercial litigants see this differently.  At least at the outset, the warlike comparisons seem attractive.  After all, you are facing an opponent, probably through no choice of your own, who has done you wrong; has failed to put things right; and has behaved in a way which is borderline criminal.  Surely your lawyer can see that and the quicker he can move things to court, where the truth (ie, your side) will be revealed, the better!

Only, it never seems to be like that.  Costs mount, documents are filed, issues which seem irrelevant to you are canvassed in great detail.  Things somehow seem to get bogged down, but never mind – your lawyer keeps putting the other side in its place with the sort of letters you wish you had learnt to write.  The trouble is that those letters, although they may make you feel better, do not really seem to be doing the trick and, although you don’t know it, they are straining the costs budget which under the new rules has had to be agreed by the parties or set by the judge.  In litigation, letters from your solicitor, other than those between him and you which are privileged and seen by no-one else, are really written with four different people in mind and can be seen by all of those, even if they are addressed solely to the first category of those – the other side’s lawyer.

Presumably the purpose of a letter is to communicate and, in the context of litigation, to impress the recipient(s) with the controlled efficiency and strategic sense of your case.  Anything which gives a different impression is surely striking wide of the mark.  So, your solicitor writes a letter which is withering in its tone, diamond-like in its sarcasm and, often, patronising in its tone.  Your initial reaction is to think “this will really show them we mean business, my lawyer is not a man to tangle with”.  Well, you are paying for it, so it’s no doubt good that you think that.

What is the reaction of the addressee?  He has probably spent a career receiving such letters (and maybe writing them as well – although he may wisely have filled his e-trashbin with pointed drafts instead; after all they are such fun to write and it is good to get the blood pounding by getting everything off your chest…..).  Strangely he does not seem to react as quickly or as desperately as you had hoped.  He may take his time to reply, even though your solicitor has told him that the matter is, as ever, urgent.  Worse still, he may actually seem to be ignoring the letter altogether.  The trouble is that rather like the boy who cried wolf constant urgency can become soporific.  How much more impressive is it when a lawyer who is normally controlled and polite becomes insistent?

Ah, you say, but if the other lawyer shows his client the letter, that will have an impact!  Really?  What would your response be if the tables were turned?  You might think that all this aggression was really covering up a weakness in their case.  Is not a relentless tactic of controlled and single-minded efficiency more attractive?

And then there is the judge.  Once a dispute is heading towards litigation, even before a case is issued in the courts, your lawyer will tell you that every letter to the other side is actually also addressed to the judge, so that when he sees it in court he should be impressed by its tone, its content and its over-riding wisdom.

What will he make of this letter with its flavour of Jeremy Paxman with dyspepsia?  Of course, since he will have come from practice where he has seen such letters traded on a daily basis, the initial impact will be underwhelming.  Filled as he now must be with a religious fervour to control costs and limit unnecessary correspondence, he may be less forgiving than you would expect.

In an interlocutory hearing during a recent case with a leading City firm of distinction on the other side, the judge commented to the opponent’s QC “and while you’re at it Mr X, you might have a word with your instructing solicitors about toning down some of the correspondence – quite unnecessary”.  Maybe not the reaction their clients wished to hear.

Of course passion and commitment to the cause are vital.  Litigation is an adrenalin-filled process and litigators do their demanding jobs under pressures which demand enthusiasm and vigour.  Nothing can, or should change that.

In recent years we have learnt to move away from the red blood of litigation to dispute management and dispute resolution and replaced the metaphors of war with management speak and case control.  Maybe full-on letters are just the last bastion of the “good old days”; but maybe not.  Of course, at the end of the day, you pay your money – lots of it – and you make your choice.  The title of this piece may give you a clue of what I would look for when you do.