Law

The 1990s have seen a transformation in the attitudes of both clients and lawyers towards litigation, with the emphasis on better use of resources and cost saving. Aggression is associated with greater expense and most clients recognise that a lawyer who stands back, weighs up the strengths and weaknesses and inserts the rapier where it hurts is more cost-effective than the aggressive lawyer who charges in hacking wildly with a cutlass.

Prudent marshalling of resources and sensible commercial management of dispute resolution is clearly the way forward.

Managing litigation requires the same skills as any other complex undertaking.

It requires: agreement upon the objective; the development of a plan to achieve that objective; the marshalling of the resources necessary to execute the plan; the budgeting of cost and time; and the effective managing of the resources in following the plan in order to achieve the objective within the time and cost constraints.

The first question a lawyer should ask when instructed to conduct litigation on behalf of a client is “what do you want to achieve?”.

Rarely does the client want to get to court, yet this still seems to be the basis upon which many litigation lawyers operate. The client’s objective, whether as plaintiff or defendant, will usually be to achieve a sensible and commercial resolution of the dispute and there will normally be a bottom line and an upper limit to what the client considers sensible.

The lawyer who advises the client to recover every last penny or to defend the case until the last, is doing his client a disservice.

Once the objective has been established, it is much easier to plan the overall tactics for resolving the dispute. Consideration of the client’s case is only looking at half of the problem. It is necessary to try and understand how the opponent really views his position.

Obviously the necessary formal procedural steps need to be planned and careful consideration needs to be given at each stage to the impact they will have on the opposition in order to judge when is the best time to open negotiations and how those negotiations should be conducted.

The classic tool for settling disputes is the “without prejudice” approach.

For too long it has been viewed by clients and lawyers alike as a show of “weakness” to make the first “without prejudice” approach. If the approach is made at the right time and in the right way it should be a demonstration of strength. However, the natural reluctance to open without prejudice negotiations has led to the importation from the US of alternative dispute resolution (ADR). This is a voluntary, non-binding dispute resolution procedure which comes in many forms including mediation, conciliation, expert evaluation, supervised settlement and many others.

The pros and cons of ADR constitutes a massive topic in itself. However, ADR will only work if both parties are willing to settle their dispute in a practical and commercial manner and both are prepared to recognise that ADR is simply a short cut and, as with any short cut, it is possible to get lost on the way and for injustices to occur.

The plan has to encompass the formal procedural steps of litigation, the possibilities of negotiated settlement and ADR techniques and when each may be appropriate. It should not be forgotten that the aim of the plan is to resolve the dispute, not get to court.

The resources required to resolve a dispute, certainly one of any complexity, can be extensive: both solicitors and barristers are likely to be involved; there may be a legion of expert witnesses required; witnesses of fact (often employees or ex-employees of the company) will need to be interviewed; and there is the perennial problem of “discovery” of documentation.

Notwithstanding Lord Woolf’s recommendations, complex disputes will still require vast quantities of documentation to be reviewed, considered, catalogued and disclosed and plans for dealing with this need to be put in place at an early stage. Computerised reading and imaging of documentation is undoubtedly the way forward – disputes are generally decided on documents.

The ability to know what is in your documents, and to find what you want when you want to, is invaluable in convincing the opposition of the merits of your case and achieving a sensible, commercial resolution. Systems are available which enable documentation to be scanned and read at the client’s premises and the resultant data and images imported into the solicitor’s IT network. Electronic searching of documents can be done and the relevant bits of the right documents easily and quickly identified.

Compared with the traditional approach to discovery, the costs savings can be enormous.

It is crucial for the project manager to prepare a budget for each stage of the project, keep the client up to date with actual expenditure, provide revisions where necessary, and seek to ensure the project is completed within budget. It is often said that it is impossible to budget for the cost of litigation but with enough experience and the right technology that is not the case. If project management software is used in an intelligent way, budgeting is perfectly possible, as is fine adjustment as and when unexpected things arise.

If the programme also includes details of the time and costs actually spent then the client has a clear picture of “actual” as against “budget” and so can monitor the lawyer’s performance. Adjustments can be made to the future programme and costs budget in the light of events that have already taken place.

Having the right tools is only part of the process. The right manager is also needed to establish the client’s objective, develop the plan to achieve that objective, be aware of all resources available and advise on their implementation, be prepared to provide a budget and have the resources available to manage that budget, and, of course, achieve the objective in accordance with the plan and within budget.

Pie in the sky? Why? It is what is expected of professional advisers in every other field and, with the increasing sophistication of both clients and lawyers in this area, together with the development of the tools to assist, there is no reason why litigation cannot be project managed successfully and cost effectively.

Peter Rees is head of litigation at Norton Rose.