When it comes to high-value complex (and thus expensive) litigation, there is one subject close to the hearts of clients: how do we avoid it? Unsurprisingly even the most well-heeled businesses do not relish the prospect of a protracted and expensive dispute, however much litigation lawyers might salivate at the prospect of a challenging and lucrative case.
First and foremost are clients who abandon prudence and common sense in their business. Clients are understandably focused on positive themes such as sales, marketing, profitability and speed of process. In the midst of the hurly-burly, they take risks that no prudent lawyer would take and which, if all goes swimmingly, fade into irrelevance. Clients often make a false economy by either not paying for high-quality (perhaps pricey) commercial advice, or by ignoring it, even though they well know that prevention is invariably better than cure.
Secondly, uncertainty and ambiguity are toxic and often create a breeding ground for strife. A common example is a badly drafted contract that is full of contradictions that would have been ironed out by a legally-qualified draftsman who was worth their salt. When clients save money, perhaps by drafting in-house or by failing to use the right specialist, the avoidable consequences can be catastrophic. I have witnessed this in several deals involving millions of pounds.
Third on my list come clients who sleepwalk into a contractual arrangement without knowing the significance of their actions. The High Court is littered with multi-million pound cases involving oral agreements made on the shake of a hand where the marriage was originally made in heaven and nobody wanted the formality of a carefully drafted contract. Sometimes one comes across contracts that are a mixture of spoken words, email and conduct, all of which need to be construed by a court in the event of irreconcilable disagreement.
Fourth come clients who fail to accept that the large print giveth and the small print taketh away. In all too many situations, clients find themselves bound by terms that they disregarded during long negotiations or worse still, never considered at all. One accepts that people in business do not and cannot behave like litigators otherwise no business would ever get done. The microscopic analysis that takes place at a trial is often a far cry from the commercial realities of everyday life.
Although it may sound counter-intuitive, a good litigator is one who understands the genesis of disputes. One is often approached for advice before war breaks out and sensible clients are receptive to early guidance about minimising risk, avoiding the creation of damaging evidence and the careful construction of a paper trail that will serve the client well if litigation proves unavoidable. n
Stewarts is the Keynote Sponsor for the Commercial Litigation Summit, which took place on 1 July 2019. www.stewartslaw.com