Marie Tay gives us an insight into commercial litigation, thanks to a talk given at The City Law School by Ian Gascoigne, Partner at Eversheds, LLP.
Commercial litigation: analysing the legal position, identifying useful tactics and tailoring them to meet the goals of different clients against the backdrop of today’s challenging economic climate.
For those who have always liked the idea of a role in commercial litigation, here’s what it involves in a City firm.
Its foundation is in contract law, lots and lots of that, almost every aspect, but particularly formation, breach, remedies of termination and damages and the application of limitation and exclusion clauses. Add occasional aspects of tort and company law plus the Limitation Act 1980, which determines when claims are made too late. Add in arbitration law, if that is the chosen dispute forum, and you’ve got the life of a City solicitor in commercial litigation.
The commercial dispute lawyer also needs a detailed knowledge of the court rules, as well as experience in the use of mediation. Today, the main practical aspects for the clients are estimating costs accurately and then controlling them.
And the most satisfying part of the job? Using the process productively for the client’s benefit: that wonderful feeling of winning against the odds, deploying the right strategy and getting your opponent to settle on terms close to your client’s goal.
What essential skills are needed?
1. Forensic skills
Being able to work around the unhelpful documents, but making full use of the good material. The ability to identify significant written and oral evidence which will win your client the case is a crucial skill.
2. Strategic skills
The battle plan and how to achieve a victory or a desirable settlement. The client may expect a ‘leave no stone unturned’ approach. Identifying the other party’s vulnerable areas in the dispute and applying the right strategy at the right time to press home the advantage, such as making a well-judged offer to settle under Part 36.
Persuading your opponent to settle on advantageous terms or, if that doesn’t work, persuading the judge of the validity of your arguments on the balance of probability at trial.
Litigation can be a long process and having a protective resilience which works against giving up is an important part of the commercial litigator’s armoury.
“Pinch points” in commercial litigation
Managing your client’s expectations is a high priority as he/she is investing in the cost of fighting a case for the reward which he/she can get out of it or the money which can be saved, if a defendant. This can be nerve-racking.
Thinking commercially plays an important role as clients will always be concerned about their chances of winning and the amount of time and money they need to spend on the case. (Understandably, they will never forget their lawyer’s answers to these points.)
The other side
Opponents come in all shapes and sizes and employ all types of tactics. Some try to pressure and overwhelm with paperwork/emails, while others frustratingly leave consideration of settlement to a late stage.
Facing the other party’s advisers, it’s wise to take the initiative by trying to outmanoeuvre them before they do that to you. But only for a tactical purpose, it’s not an end in itself.
An unpredictable factor in the case. Under the court spotlight, witnesses may behave very differently from expectations. It’s a difficult role and the lawyer should not forget that.
These different elements vary in every case, making commercial litigation a highly stimulating practice area in today’s legal market.
What strategy/strategies should be applied more in practice?
With the implementation of the Jackson funding reforms later this year, well-judged Part 36 offers, which pass the cost risk to an opponent, will assume an even greater role.
Looks like the commercial litigation field is set to become even more challenging for LLB/GDL students and future trainee solicitors interested in this area.
Thanks to Marie Tay for this write-up of an event at the City Law School in November 2012. Marie is an LPC student at City.