How do I know my litigation solicitor is doing a good job for me? Should I not just use a barrister for more clout?

It's tempting to see litigation as a war.  It's long been dubbed an old boy's club of adversaries 'duking it out' while wearing robes and wigs.  

More broadminded modern lawyers have learned to be chameleons: empathetic and gentle with their clients and more robust, forthright and sometimes strident with the opponent's legal team.  The Courts are pushing for collaboration between litigants, but what does a client who perceives themself as 'wronged' want?

I hear the phrase "it's the principle that matters" a lot from clients.  Whilst I completely empathise with a 'wronged' client and want to argue for the solution they'd like, sometimes expectations must be managed so that we act within the restrictions of our regulator and also show the Court that the client is reasonable and wants their case to be dealt with justly (which is the Court's core value).  Nobody wants a pyrrhic victory. 

That's not to say there isn't room for clever tactics and powerful language when dealing with the opponent's legal team though.  I just won't waste time (or costs) scoring points for the sake of it.

As a basic rule, you, as a client, probably don't want to end up in a worse position than when you first instructed your lawyer.  Aggressive tactics might be required when dealing with certain situations and the other party has a lawyer.  However, deploying obstructive or inflammatory conduct, or being too strident in approaching an unrepresented party, can not only stand in the way of a potential resolution but can also irritate the Court and impact the outcome, especially the important matter of who pays the costs.  

Many litigants have been punished by the Court for their aggressively hostile approach, either by being forced to pay their opponent's costs or depriving them of any payment from their opponent towards their own.  So, as much as you'd like me to terrify your opponent with threats and bamboozle them with legal phrases I really must tread more carefully if they don't have a lawyer.

So does that mean you should be friends with the opponent and compromise, to avoid being criticised by the Court? 

No.  I'd go so far as to say that a lawyer dealing with litigation too 'softly' or without a carefully considered strategy could actually be negligent.  My job is to put forward your case or position and to represent you to the best of my ability.  I'll advise you when to take a point and when to let it go.  If it needs reinforcing, I'll go for it.  If we should back down, I'll tell you.

It should go without saying that anyone working in litigation should be competent.  There is close regulation of litigation work to ensure this remains the case.  Legislation makes 'litigation services' an activity which can only be carried out by firms and individuals specifically authorised to do so.  This is likely only to be solicitors (or more junior lawyers under supervision) in a law firm.  

[There are also certain barristers who can take on litigation work directly from clients under the 'direct access' scheme, but as I explain below, my view is that that scheme really only lends itself to representation at hearings at the last minute.]  

There are compensation schemes to protect clients if solicitors get things wrong.  Clients are also perfectly free to change solicitors or to sue them if it isn't working or they have messed up and caused the client loss.  

A client may choose to seek a second opinion from another solicitor if they think their existing lawyer has made a mistake or their approach doesn't seem right.  If something has gone very wrong, it may be possible for the client to sue the lawyer for negligence.

So what does representing a client's best interests look like?

A litigator should:

• give accurate advice to their client - sometimes advice can change during a claim based on new evidence, new cases / law changes or events leading to trial, but should always be the best possible advice based on the facts as they exist;
• follow their client's instructions - unless to do so would mislead the Court or put themselves in a conflict situation (e.g. if they act or acted for the opponent or the client was telling them to do something dishonest).  If that means the client instructs the solicitor not to settle, and the client has been advised of the consequences of not trying (e.g. possibility of not being able to recover their costs, or having to pay the opponent's costs, maybe even an additional penalty if they refuse a 'protected offer' that has special consequences) that means not settling [and bullishly defending the client's right to refuse settlement (though I'd want to thoroughly question why a client was so doggedly determined to take a case to trial before agreeing this strategy)];
• accurately put forward the client's position both to the opponent(s) and to the Court.  This is ensured by the Court requiring a 'statement of truth' to be signed by a party (or their advisor) on each significant court document, stating that the contents are true - any party signing one that isn't true could be held in contempt of Court;
• only put forward a case, argument or position that is at least arguable (having first advised their client as to the likely success, or otherwise, of the case or argument). 

Some litigators can be cautious and will only accept cases from clients where the prospects of success are high, to avoid having a 'loss' on their CV, or any risk of complaints if things go wrong.  Others are more willing to 'fight for an underdog' who has a novel or niche point or principle to argue (that may also assist others in the future) and stands at least a reasonable chance of success.  

I'll tell you if I think you could win (or lose), how likely that is, and what your exposure is on costs (i.e. can you claim any of yours from the opponent and / or will you have to pay any to the opponent).  I don't 'cherry pick' cases based on whether or not they stand a good chance of winning, or will gain publicity.  

To act in a client's best interests also includes putting the right team in place.  

Clients are free to access barristers on the 'direct access' scheme.  You may feel that is the right choice for you if your opponent has chosen a heavy hitting big name law firm.  Bear in mind, though, that where barristers really shine is in drafting complex court documents and representing clients at hearings.  They will usually require the backup of a skilled solicitor to do the day-to-day work to progress the case to trial (including being available for their clients, liaising with the opponent, experts, witnesses and the Court, dealing with evidence and drafting letters and other necessary forms and documents).  

Solicitors will usually instruct a barrister in litigation in any event, to provide a definitive advice on prospects of success, collaborate on overall strategy, draft the main court documents to either bring or defend the claim and represent the client at trial.  

We have good working relationships with numerous chambers and individual barristers in various areas of litigation.  We can help you select a barrister based upon advocacy and drafting style, their experience of the particular area the case falls within, and that we think would be a good fit for you, so you can be assured you'll have the right team in place when you need it.

If you'd like to discuss the service you have received (or are receiving) in a litigation matter, I'm always happy to give a second opinion, or to discuss an alternative strategy if you think you'd like to try something new.  Get in touch.