Four things to give up for Lent in Litigation

In our strategy work with clients faced with heavy litigation, there are certain temptations that they wish their lawyers would forsake. Here are the top four.

1. Being tempted to engage with bad points.

Whether you are the claimant or defendant, each party has a short list of good points. Good points make a case digestible, simple, compelling and lead a court or arbitral tribunal to a place which it feels accords with a sense of justice and common sense. Good litigators spend a great deal of time on this list as it is lays the foundation for efficient case management and ultimate victory. The trick is to stick to this list and avoid the temptation of engaging with bad points raised by the opposition. Imagine that each bad point represents a potential fork in the road which the court or arbitral tribunal is being invited to travel down. The goal is to keep them travelling on your road and with the horizon you have created with your good points very much in view. Don’t allow a fog to descend by engaging with every single point raised by the other side. If it is a bad point, say so, and do it briefly. Do not be tempted to support your response with lots of facts or law. If it really is a bad point, have faith that its lack of merit will be equally obvious to the court or arbitral tribunal in due course. Further, when bad points really are inconsequential, we encourage our client’s lawyers to adopt the “so what” response – i.e. even if the point is factually true (but of no legal merit) limit the response to a “so what?” style response.

2. The temptation to set a task running without first assessing whether it is worth the costs to the client and will help your client win.

This one is an old favourite for clients. Nothing excites them more than seeing a task on a billing narrative for which they cannot see any value or point. These tasks are usually commissioned during a period of temporary panic, or when the supervising partner did not have the time to stop and think about the value of the task and how its fits with the case strategy. Interestingly, commissioning low (or no) value tasks is also one of the complaints regularly raised by private practice associates during their 360 appraisals. Even the most hard working and ambitious associates become deflated by attending to tasks that are of low value to the case, or where the final work product is never used at all. In most cases these task have been commissioned, not as part of the client’s case, but in response to a point raised by the opposition. This diverts scarce resources, unnecessarily increases costs, decreases team morale and distracts parts of the team from focusing on higher value (more meritorious) points. As difficult as it is, especially with the enormous time and other pressures faced by law firm partners, the temptation to set a task without careful consideration is something that should be forsaken.

3. The “marathon mindset” and constantly look for opportunities to shorten the case duration and finish sooner.

Large and complex cases often run for extended periods of time even when they are well managed. But in many cases we see the case runs longer than is necessary. In all developed legal jurisdictions the parties to a formal dispute (whether court or arbitral) are required to follow a process enshrined in a published set of court or arbitration rules. The process starts at one point (e.g. the filing of a claim) and concludes at another (e.g. the hearing of the dispute). There are many prescribed steps required to be followed, in a particular order, in between. As any expert on process and associated human behaviour will tell you, the existence of an obligatory set of rules results in reduced creativity – indeed the very purpose of a process is to limit a participant’s discretion to act differently. The rules must of course be followed. However, clients often wish that lawyers would look beyond pure process to identify ways of winning sooner. Can the case be crafted on a more narrow basis? Is the opposition facing a particular pressure (commercial or personal) that will influence their behaviour? Can a new business transaction be done either with the opposition or another party that will change the dynamics of the dispute? Has the law since changed and what effect does this have from a practical (as opposed to legal) perspective? Here is a separate sensitive issue for another time: shortening a case means of course fewer bills. No law firm genuinely wants that if it is going to adversely effect fee income. However, shorter cases and fewer bills does not necessarily mean reduced fee income. Clients gravitate towards creative firms, mandating them with their most complex work and are prepared to pay higher fees for the rare ones that show genuine creativity. Don’t be tempted to slavishly follow process and instead think more widely about the dynamics at play.

4. Worrying about what the other side will say about a particular point or argument.

If it is a good and ethical point, put it to the opposition as forcefully as the circumstances require without worrying about what complaint they may make about it. All too often clients tell us that their lawyers regularly test points by reference to the anticipated response from the opposition, rather than deciding whether to make the point based on internal evaluation. Of course it is necessary to think several steps ahead and that requires consideration of the likely response from an opponent. However, if the strategic modus operandi constantly involves, as the initial evaluative step, worrying about the opposition, a case quickly loses its direction and sense of confidence, both of which are critical to ultimate success and/or case settlement positioning.