ROF Litigators

My area of practice encompasses mainly non-contentious with specific types of contentious work. Last year it was a lot of contractual/advice stuff which I enjoy but lately I have been allocated a varied mixed caseload of crown/high court stuff (can’t reveal area it’s too outy). 

In short, I need to improve. I am not a natural at this, I don’t have the confrontational instinct that proper litigation solicitors have and I need to be more strategic. Particularly when responding to threatening emails… My team are all super busy and at capacity and I can’t ask. 

Litigators, what should I be doing. Do you have any tips/ work habits that make your life easier /books to read?

(and no I can’t move to Dubai)…. 

"I don’t have the confrontational instinct that proper litigation solicitors have and I need to be more strategic"

You definitely don't need to be confrontational, and despite all the rof threads that bang on about how disappointed litigators constantly are, I seldom get letters like that 

you are right to think it's about strategy tho - you also need to get past the idea you must "win". Sometimes your clients case is just a bunch of shite and the sonner and more cheaply this is recognised the better 

what chambers do you instruct regularly? Are there are webinars and online talks or crib sheets you could use to help you?

The phrase "We were surprised and disappointed to receive your letter of x date" is a good start. 

Make sure you know your procedure really, really well and then the threats will bounce off a little easier. You don't have to respond unless the procedure says you do. No response can be the best response.

I liked the crossing of posts there. Although I was a little disappointed.

Here's another thought. Ask someone else in your firm who does litigation if you can look at their files so you can get a good idea of how this sort of correspondence works. Most of it is p1ss and vinegar.

Relative of mine used to sit in the County Court and High Court and would be very meh about the threats in correspondence. He would pick out letters that said things like "we are sure the judge will be very angry about your conduct" and ask counsel at the opportune time whether this was the part he was supposed to be so exercised about.

Surprised and disappointed to read some of the advice on this thread.

Some pretty lacklustre litigation advice on this thread, particularly the suggestion that you should just recognise if your client has a bad case and end it ASAP (as opposed to, you know, being a litigator and leveraging the best possible ending for them).

You should not be doing High Court litigation without assistance if you're not comfortable with it.  

JCDenton is surprised and disappointed as well. He will not hesitate to show this thread to the mods should the issue of costs arise.

"and leveraging the best possible ending for them" Whilst at the time clocking up loads of hours and stiffing them with a reassuringly hefty bill.

Fence Foal's response is self-serving and misconceived.  There is plainly no basis for raising this issue in relating to costs, and any suggestion to the contrary is denied.  

We are disappointed, but not in the least surprised, to read your post of 16:47 inst and will of course report your conduct to the Court, the SRA, the BSB and the UVF.

Also sent by 1st class post, DX, fax, e-Mail, Telex, carrier pigeon and gyrocoptor

The above is not to be treated as advice, but as suggestion. It carries as much lustre as it can in the absence of a context. To suggest otherwise is vexatious. 

My experience of all the litigation I have done in Civil, Crime and Family is that knowing procedure is the key. The other side can criticise all they like (and they do like), but the court only tends to get exercised if you don't follow the rules.

Oh, and what JCD said about carrying out High Court litigation without enough experience.

This is why people don't like litigators you know 

Your communication timed at 16:53 today (above) is extraordinary.  Self-evidently, there are no grounds for any report to the Court, the SRA, the BSB and/or the UVF (or any other entity).  Any such report will be vigorously resisted and all our client's rights are reserved, including (but not limited to) the right to claim its costs wasted in responding to your unnecessary and uncooperative correspondence (which runs contrary to, amongst other things, the Overriding Objective, the SRA Rules, the Commercial Court Guide, and the Bible).  Our client will apply a reasonable interest rate of 900% to such costs from now until the date of judgment in 2035.  We trust this puts an end to this matter and that future communications will be more cooperative.

First, become a white book nerd as others have said.

Secondly,  imagine you're an actor playing the part of a d1ckhead and really, REALLY overacting.  That's what I do.  It's easy, then. 

Thank you all for your tips! And your impressions of litigators 😂 (no offence litigators… you have a hard job) I will make sure I read up on procedures. Its the email communications/day-to-day stuff that counsel can’t assist with that stresses me out but as you said I need to know procedural stuff.  

As a trainee i was scolded for drafting a letter stating we were surprised to learn of xyz. Apparently, as English solicitors, we should never be 'surprised'

i have fvcking hated litigation ever the time when as an articled clerk I lost (well, the master refused to give) a consent order 

be a transactional lawyer or go home

Good advice but really need biggie to tell you what to do.

I genuinely think people are starting to get the message.

It's separate segment of the profession dominated by the mid market firms, because there's not much money in it. Big companies settle early and don't run up big fees, and all the big firms are conflicted. You have a dozen or so mentalists like the Tchenguiz brothers who run around suing everyone out of principle which drives the entire top end of the market. The rest is run off corrupt African and ex-Russian states. Totally pointless.

Meanwhile the day to day is writing these angry letters and acting as a letterbox. Then you farm everything intellectual out to counsel. You have a go at it yourself, but only a little go and counsel corrects you. You're trying to lateral for something but nothing better exists. The path to partnership is dead man's shoes rather than any business case based on merit; you go through life as this sort of pathetic grim reaper until at 13PQE the powers that be deem to make you up to a salaried partner earning the sort of dosh that a 1PQE leveraged finance associate makes at a half decent firm.

"Then you farm everything intellectual out to counsel."

Hard to argue with that. How partners who "practice" litigation in the UK can call themselves lawyers remains a mystery to me. 

The other side can criticise all they like (and they do like), but the court only tends to get exercised if you don't follow the rules.

And the worse your case (or client) is, the more exercised the Court gets by not following the rules.

 

There are really 2 major lessons in litigation.

1. Urination contests in correspondence are pointless, low-grade, low-class.  Should never get involved in them.  They can however be quite fun. 

2. Adverbs are not your friend.

I was amazed when I joined my current place and the litigators still used terms such as “surprised and disappointed”, “otiose”, and “we are at a loss”.

Don’t do any of that. Just use simple language. Your job is to persuade, not argue. If you don’t find it convincing, don’t say it, and don’t feel the need to use the weird sh1tty old litigators’ vernacular.

Here are Terry’s Top Tips:

- you don’t need to respond to every point in every letter. You don’t even need to respond to every letter. You can also ignore most deadlines imposed by the other side.

- bad points infect good points. Unless you NEED to make a bad point, just say nothing if you don’t have a good point.

- don’t feel the need to respond to the other side’s points in the same order they raised them. Play your own game. Order your own arguments in the way that is most persuasive. Normally that will not be the order in which your opponent raised their points.

- you regret saying things in correspondence. you rarely regret NOT saying something. Therefore, say as little as you can get away with. In particular, avoid sharing your reasoning unless you have to. This makes it easier to change tack later if a new fact comes to light.

Those points are obvious. Ofc a fair defence tactic to say we do not intend to engage in litigation by correspondence and deal with every point, and have explained our position with sufficient clarity for you to be able to consider your own. But interests of litigator are not the interests of client. Litigator needs to run up fees with angry letter writing which is why it's still done.

Disappointed but not surprised that this isn't better known. Ultimately you want clusterfvck clients who want endless pointless court battles and angry letters. It's such a parasitic joke of a job.

Litigation is the only law job.  Everything else is proofreading or colouring in. 

strange dichotomy between contentious and non contentious lawyers

at the junior level, litigation is more accessible. it's easier to understand what's going on. and i think that's what sucks a lot of them in. "ew...I don't want to be doing blacklines...let's write a memo!!"

non contentious hate writing anything, and just like being project managers, being "commercial" and getting things done.

both sides misunderstand what the other does. unfortunately I actually do understand what both sides do, and understand the lies which litigators tell themselves. i have exposed many of these above. there are many lawyers at RPC and Mishcons barely able to put foot on the table living in basement house shares in Peckham. They get by telling themselves "I'm...I'm a proper lawyer...I like what I do...I ...I like it"

And in terms of the firms which do litigation and are ranked for it, it's all magic circle at the top, Herbert Smith, Travers, Stephenson Harwood, Macs, Sad-dleshaws, Simmons, Clydes, RPC, Pinsents. Sh1tty firms. All of it is sh1tty low rate low paid firms. The only US firms which rank well are generally Quinn, Debs, W&C and Gibson, and horror stories abound from the first three. Then there are boutiques which sweat you hard and pay sub MC / SC rate, and might tag a larger bonus.

It's just such a terrible market. Terrible.

But what if one does litigation in Dubai? Surely that's enough to put some hummus on the table. 

What Barry said. Thought White & Case were meant to be a better place to work than Debs and Quinn.

Basically what Terry said.  Keep it simple, use plain language and you should never be "surprised", or any of the other terms mentioned, as that just suggests you haven't thought through the angles. 

You also shouldn't be surprised that your opponent is an idiot and you certainly shouldn't tell them that they are.  The starting point is often to capture the moral high ground (if there is some) and then hold it.  Always assume that every letter, email or other communication will be read by the Judge, or you might be cross examined on it, or you might have to explain it to a costs judge.  If you might feel uncomfortable doing that (and you will, unless you're a complete psycho, in which case you deserve what you get) because of what you've said, don't say it.  It will never improve the Judge's impression of you, or the client.

There are two ways to make litigation pay.  First, be a tool and milk the case, the client and the opponent for everything you can, or second, solve the problem (whether that's the claim, or whatever is behind the claim) as quickly and efficiently as you can and get a workable solution.  Only the second route (other than with a certain type of client, who you don't want to work for unless you're a certain type of psycho) will produce a sustainable business with clients who come back to you because you get them out of the mess and sort out their problems.  That route can lead to a lot of advisory and semi-contentious work, to complement the truly contentious work and can be very profitable.  You also need to be able to batter the other side into submission and win if that happens to be the only viable solution to the problem.

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