The first file I picked up after qualifying shocked me. This was not two leading law firms vigorously protecting their respective clients’ interests. It was two individuals fighting over minutiae, spending time, money, energy and creative thought (or at least the potential for creative thought) doing down the other person rather than advancing their client’s position.
Since then, I have spent 10 years in private practice, been a senior in-house disputes counsel with a major corporate, and worked in third party funding, before recently returning to private practice. Sadly, it is no surprise that there remains a disconnect between many disputes counsel and their clients. The former often see themselves as hired guns, the latter bemoan the time and expense of dispute resolution and, even more, wonder why their lawyers do not seem focused on their clients’ goals.
You can, of course, always go in and beat the other side up, take every point going and grind them into dust by writing umpteen letters a day. Sometimes it may even be necessary. But who does it really impress, let alone benefit, in most cases? The court or tribunal rarely sees that material and when they do, they are typically underwhelmed. The client? Unless you can explain to them how it is advancing their interests, all they see are the bills and the time taken to move forward. This lacks something as a basis for a mutually beneficial and therefore sustainable relationship.
Much comes down to perception. Some private practice lawyers have an unfortunate tendency to perceive that they are the smartest people in the room. The client, (who would have been a lawyer if only they had been clever enough), hangs on their lawyer’s every word and follows their advice without question down to the last detail, because to do otherwise would be to risk their entire corporate future.
The most effective remedy for this perception is working (either as employee or secondee) in a substantial corporate or financial institution. There, you can discern the true position of the lawyer. When you have earned it, you are a trusted advisor, but even then, your advice is only part of the jigsaw. It needs to be put together with, for example: broader corporate strategy; investor and media relations; and engagement with governments, regulators, NGOs, unions, employees and customers (the market as a whole, sub-groups and individuals). And fundamentally, your client (who is probably quite good at their job, may well have extremely helpful knowledge about the other side’s motivations, and will typically be the person who actually resolves the dispute) is generally more interested in spending time on their corporate raison d’être – the bit that brings in the cash – than in listening to lawyers, particularly those with an unduly strong sense of self.
I could suggest that there is some magical recipe for success, but that would obviously be nonsense. First and foremost, it is about communicating with your client. And the greatest part of communicating is listening – asking questions, listening to the answers, asking more questions. This is not to make you look smart or superior, but so that you really understand what your client wants to achieve and the factors that will make an outcome favourable or unfavourable – what will make what looked like a triumph actually a disaster and what will make an apparently unfavourable result perfectly acceptable.
A couple of years ago, I sat on a panel at an arbitration conference discussing that old chestnut, arbitrator selection. “Ah,” said a venerable panellist, “all the clients care about is getting an award in their favour” Not so. I have been involved in disputes where it was important that my client did not win. While it was acceptable to be in a formal dispute with the counterparty while engaging in commercial discussions to resolve the issue, winning would have damaged a crucial customer relationship beyond repair. Similarly, I have recovered an insubstantial percentage of a large judgment, but had it considered a resounding success because of the message that pursuing proceedings and then extracting monies sent to other potential troublemakers.
It comes back to outcomes. Provided your client’s desired result is legal, moral (that bit is up to you) and achievable, their goal is your touchstone. Find out how much they want to spend and how they want to be charged. Ask them what really matters to them. Test, of course, but always listen. Then design the strategy with the best prospect of achieving that goal and tactics to fit the strategy. Distinguish between tactics that should help the client to achieve its goal and those only likely to create noise. That is not always easy, but it is what you are being paid for.
Third parties will, naturally, try to mess things up, particularly (but not only) if they are on the other side. So keep the strategy under review with your client, refresh it as the situation develops, and evolve your tactics from there. Sports coaches nowadays want those who are not just tall, fast, and strong, but who can solve problems quickly and effectively. So do clients.
Happily, you have help. Today’s in-house lawyer is typically superb. They know their business and their businesses. (They also know the tricks that law firms pull to make more money, generally because they saw them at first hand as associates.) And the really good bit is: they will help, because they want to look good too. So listen to them, trust them and collaborate with them, and accept that may mean collaborating a bit with the other side too from time to time.
Sometimes, scorched earth is the only way to go. For most clients, though, disputes are simply another problem that needs to be solved, with help from an additional advisor working with existing trusted advisors, and they are aiming somewhere along the spectrum of logical commercial outcomes. Go with it. And above all, remember, as an old Australian once told me: “The Good Lord gave you one mouth and two ears for a reason.” I paraphrase slightly…