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.

How to make your lawyer love you, save legal costs and reduce disputes

Courts are tightening the costs that can be recovered by the 'winner' in a money claim, so that now claims for money valued below £100,000 have a fixed level of recoverable costs.  Most solicitors should be able to offer a good service level within the fixed costs for claims between £25,000-£100,000.  For money only claims below £25,000 it is likely legal costs would exceed the fixed costs.  

So what can you do to avoid overspending on litigation lawyers when you're already owed money?  

There are ways to save on legal costs (or even reduce disputes in the first place).  Your litigator will thank you too, as it will save time and they are more likely to come in on budget.  Whilst this guidance is aimed at businesses owed debts, the same rules will largely apply to other would-be litigants so will always make your lawyer smile. 

1. Make your terms tight - most money claims will be a dispute about a contract.  You can help to make it easier for the Court to agree with your position (or reduce the risk of a dispute altogether) if you make sure your terms are clear.  They would ideally include: 

- a straightforward explanation of who will do what and when; 

- exactly how a cost is calculated; 

- an uncomplicated termination or cancellation clause, including a clear explanation of any penalties for terminating / cancelling;  

- if you want to charge interest on unpaid costs, set it out, but make sure it is a reasonable amount - a punitive amount would be reduced or disallowed by the Court.  [For B2B relationships the Late Payment of Commercial Debts (Interest) terms are usually a good inclusion.]  

2. Make sure your contract is evidenced in writing.  It doesn't have to be a professionally drafted or lengthy document.  It might be an exchange of emails for example, but having clear evidence of exactly what was agreed will help the Court.  Having a lawyer check over your terms once you have drafted them is usually a sound investment - I am always happy to give a free view as to the clarity of terms and any improvements that I think could be made.

3. Follow your terms to the letter.  It may be obvious, but if you have taken the time to do 1 & 2 above, don't then breach the terms you have set down.  That is likely to lead to a dispute when it comes time to pay.

4. KEEP YOUR DOCUMENTS SAFE.  I cannot stress this enough.  It's all very well spending time drafting contracts and terms, but if you have lost or destroyed them when it comes to a court hearing, not only will it leave it to the Court to interpret what was agreed or has happened BUT it might also stand against you.  The Court can make a finding that documentation was intentionally destroyed, which can lead to adverse findings and even a punishment in costs!  When I say documents this includes anything electronic or physical.  On that note, please don't alter or mark them (including highlighting), or forward emails to your lawyer.  Any marking or forwarding changes the original and that could add costs too.

5. Consider having a consistent and clear credit control policy.  Treat every customer the same and let them know what to expect in advance (usually in your terms).  This gives a good flow to a trigger point for instructing solicitors and deals with some of the necessary pre-action work you would normally pay for.

6. Act promptly in the case of a dispute that you can't resolve alone.  Prolonging a dispute in an attempt to persuade an intractable customer to your way of thinking is simply going to delay payment and probably increase legal fees later on with more documents to review and / or preparing lengthier witness statements.  An early view from a solicitor (and maybe a solicitor-drafted letter for you to send) could unlock the dispute.  We offer a fixed fee legal advice service, including reviewing documents and an interview with follow up written advice, which could be used for this situation.  

7. Try to amicably resolve things before instructing your solicitor.  The Court will expect you to have tried to resolve the dispute without legal intervention.  There are so many routes available for what is deemed 'alternative dispute resolution' (ADR) including mediation, early evaluation by a legal professional, round table meetings and good old negotiation.  If the Court considers insufficient attempts have been made at ADR it can pause the proceedings to order to allow the parties to try again and / or penalise parties in costs.

Ideally you will have followed the guidance above before seeking out advice (and you'll likely hit the ground running as you have instantly saved your lawyer a good deal of work and yourself a few hours of legal fees).  

If you're already in a dispute you can't resolve, don't despair.  There are still costs savings to be had by getting your documents together, in chronological order (or, for extra 'great client' points, in one pdf) with a very short summary of what has happened.  That will still raise a smile.  

How do you choose your litigator (i.e. why instruct me)?

You need a litigator.  You want urgent advice that you can afford.  You have your pick of anyone.  Why choose a single practitioner firm in Cornwall?

Honestly, you don’t have to.  It would be a boring article if I stopped there though, wouldn’t it?

I could promise to be “tenacious”, “robust”, “ferocious”, like others do, or whatever description you think you want to hear about your choice of litigation solicitor.  All of that is white noise. 

So what should you look for in a litigator? 

The relationship you have with your litigation solicitor is an important one and thought should go into it.  You wouldn’t settle on the first car you viewed without test driving a few to check you get on, would you?  The same goes for your lawyer.  You might be working together for months (or years), trusting them at possibly the most stressful or worrying time of your life.  Depend upon it – there will be frustrations, hard to hear realities and tough decisions.  Who do you want to see you through it?  A flashy lawyer who you think ‘matches up’ to the opponent or someone you can ride out that journey with and trust to put you first? 

It should go without saying that your chosen lawyer will be available for you when you need them, get back to you promptly, tell you what you need to know in a clear way and always do their best to protect and guide you.  You should also be confident they know what they’re doing.

So you should go to a big firm then?  Maybe.  Big firms tend to have a large team of lawyers at all levels at a range of prices.  However, you might find that the partner you first speak to, who you gel with really well, isn’t the person who does your work and that you’re very quickly shunted over to a significantly less experienced lawyer for the remainder of your work.  

If that works for you, great.  If you liked the pedigree of having a partner represent you, you may find the service you receive from a junior team member isn’t as ‘gold standard’ as you were hoping for that premium price.  Alternatively, with popularity sometimes comes inability to take on your work, leaving you out in the cold at the very worst of times.

This is where small firms come in.  They may not be well known to opponents, so may not command respect from larger firms.  However, there is significant value in choosing a smaller firm:

• There are no huge overheads on premises, staff and various other ‘trimmings’, so prices can be kept low (I offer fixed fee advice as standard);
• Smaller firms tend to focus on a wider offering to clients, including (in my case) out of hours and urgent appointments, so you can be seen sooner and at your convenience;
• There’s value to being underestimated when working in such a technical and tactical area as litigation – it is possible to outmanoeuvre opponents who focus on a perceived inexperience or lack of ‘pedigree’ in their opponent and I’ve certainly been underestimated when toeing up to some of the biggest city firms in the past.  Those same large firms who might allocate a lesser experienced team member to you might do the same to your opponent;
• A smaller litigator has access to the same barristers, courts and experts as any other litigation firm so you aren't at a disadvantage;
• As most software and resource packages tend to charge per user, smaller firms are able to dedicate an appropriate budget to the most cutting-edge tools available (in my case the ability to book appointments and make payments online and the use of research and assistance tools with generative AI), leading to time and therefore costs savings;
• Payment arrangements - smaller firms tend to be more willing to work with you on payment terms or pricing, making representation on a budget work better for you.

These factors may well be the least important, though, as the firm size, name and ethos doesn’t matter when it comes to how good your litigator actually is.  Websites and CVs are really important, so check out website and social media bios.  Read reviews.  Do they have experience of dealing with the type of dispute you have?  Have they been reported in notable cases?  What do others say about them?  A really good litigator will tell you about more than just successes and will offer something extra.

At the end of the day, though, it's your choice.  First impressions and instinct go a long way.

If you’d like to see if we’re a fit make an enquiry.

 

 

Why start a law firm?

I have been asked a lot why I decided to start my own law firm.  That’s a good question.  I’m a forty-something, lifelong employee-and-never-boss and busy parent.  Getting regulator approval is complex and time-consuming, with nail-biting moments.  There are much easier ways to entertain yourself!

The short answer is freedom.  

I've always been in traditional legal practice.  In my experience, many firms remain ‘old boys clubs’ offering core property, family and probate services, with a token litigation team, mostly seen (or treated) as a poor relation or a pack of ‘mavericks’ turning tricks in front of wig-donning judges.  Most firms steadfastly maintain 9-5, Monday to Friday, opening, with meetings taking place face to face at a fusty law office.  Some firms claim to be “modern and progressive” simply by offering emailed correspondence or an occasional video call and having a website. 

Whilst some clients are of course happy with this, I have always thought improvements could be made.  As a litigation solicitor, it has been frustrating having to follow the same procedures as teams who necessarily need to follow set rules and processes.  Things move fast in this line of work, so a 'one size fits all' approach can unnecessarily complicate and delay things when clients just want someone to take the stress off of them immediately.

With courts also increasing their control over costs, value for money is increasingly important to clients, as well as convenience.  I think it is possible to deliver that, without losing a personal service.

My goal is to provide a service free from the constraints of more traditional practices, by bringing client experience to the centre of everything I do.  I have spent time carefully researching and tailoring my processes and tools to keep pace with the modern demands of dispute resolution work.

I can offer the most up to date software and technology I can source (including generative AI), to pass on as many time and labour-saving conveniences as possible to my clients.  I want every client’s experience to be the easiest, quickest and least stressful that it possibly can be.  I have stripped unnecessary frills, to keep overheads low, so that I can pass on that saving to clients by pricing my services lower than my nearest competitors.  I will offer tailored and fixed fees where possible to ensure my services are as affordable as possible.  And I will continue to tailor my services to each and every client to ensure transparency, professionalism and expertise at a realistic price.

Read more