Two people get in each other’s way in a doorway. They apologise profusely: “So sorry – my fault” says one; “No, no really it was totally my fault” says the other.
The same people are driving and get in each other’s way. Behind the shield of a car, they become overwrought with rage, hurling abuse at each other, spewing foul and insulting language. They have transformed: the normally civilised person has become rabid.
And so it is with litigation solicitors.
They are normally capable of engaging with others courteously and rationally. Put them behind the shield of a “Yours Faithfully” letter, however, and some are transformed: they become hysterical, abusive or a combination of the two.
Some litigators are so intent upon venting their indignation that their letters – steeped in rhetoric – become very difficult to understand. Their actual purpose, if there was one, is lost in a web of badly crafted abuse. In the words of Shakespeare, they are “full of sound and fury, signifying nothing” (Macbeth Act V, Scene V).
Other litigators appear to view inter-solicitor correspondence as an exercise in “point scoring”. Again, it is difficult to find the purpose in such correspondence when the judge – the ultimate arbiter of conduct in the litigation – is invariably disinterested in the score.
So what motivates the tenor of such correspondence and what does it really achieve?
In answer to the first question, there appears to be an array of motivations: for some, such letters represent an outpouring of genuine emotion in response to the acts of the other side (unprofessional). For others, they get caught up in the drama of the exchange and relish the sport of a stinging back and forth (indulgent). For some, there is a belief that aggressive correspondence can be used to coerce the other side into changing their position (misguided). Some litigators attempt to use rhetoric to mask the weakness of the underlying legal case (transparent), while others feel that hard-hitting correspondence is what the clients will want to see and fail to explain to them how that will be perceived (client mismanagement). There are then the litigators who, despite their better judgement, are instructed to write such letters (an unenviable position).
As to what is achieved, the use of impassioned or antagonistic correspondence inevitably has the opposite of the desired effect. Far from giving an impression of strength, hyperbolic and/or aggressive rhetoric can suggest vulnerability. It can reflect overcompensation for weak legal argument or betray the client’s weak spots. And, as for the idea that such correspondence is persuasive or in the client’s best interests, on the contrary, antagonistic correspondence increases costs, makes settlement more difficult and motivates the other side to fight harder.
For some, this aggressive correspondence reflects a form of cowardice. Emboldened by the relative anonymity of a “Dear Sirs” letter and the use of the passive voice, litigators will use these letters as a forum for making points and comments that they would not make face to face. This is regrettable, not least because it is unnecessarily offensive, but because it creates a distance between the professionals dealing with the case. Without a constructive dialogue between the lawyers, it means that any chance of collaboration over administrative issues is likely to be lost and, more importantly, that the chances of settlement will be much reduced.
It is also striking how many litigators rely on stock expressions in their correspondence. Like all cliches, these words and expressions have either come to lose all impact or take on a new double-meaning. We set out below some of our favourites:
Click here to view image.
So how should litigators communicate?
Inter-solicitor correspondence should be used for a positive purpose: to request information, to agree timetables and bundles, and to narrow the issues in dispute. Inevitably, there will be differences of opinion and frustration along the way. A flurry of adjectives will likely spring to mind when responding to the other side’s “intransigent” “disappointing” “disingenuous” or “misguided” conduct but resist the temptation to let these words colour the correspondence. Clear, polite and neutrally worded correspondence achieves progress. And, generally speaking, picking up the telephone achieves more progress still.
This is not to say that there is no place for taking a hard line in litigation. Quite the opposite: taking robust action, when called for, is part of being a good litigator. But the distinction between rhetoric and action in litigation is an important one: making an application speaks much more loudly than several hyperbolic threats of doing so. Indeed, nothing undermines credibility like failing to follow through with a threat.
The key point in all this is that solicitors should not get distracted by engaging in the drama of inter-solicitor correspondence. Litigators should retain a single-minded and steadfast focus on their ultimate objective,that is the resolution (either by determination or settlement) of the case.
It seems to us, however, that there is perhaps an expectation among litigators as to how litigation correspondence should look. Whether through fear of the client’s reaction or force of habit, many litigators are resistant to the idea of writing simple, clear and polite letters.
This is a pity: “Good writing is often about letting go of fear and affectation” – Stephen King.
This article was first published on Legal Week