The invitation to write the introductory article has allowed the opportunity to reflect with colleagues as to what makes a good litigator. Below is a selection of the qualities that I believe are seen in the best litigators that I have come across both acting for Legal & General and against it.
Geoffrey Timms, Group Head of Legal, Legal & General Group plc.
Notwithstanding major changes in the litigation process in the UK over the last 10 years and the growth of ADR, these qualities remain largely consistent over time. Of course, no one person can be expected to have all these qualities and, if they did, they would probably regularly change their clothing in a telephone box. Nevertheless, the litigators that act for us possess many of the qualities set out below, which are not listed in any order of importance.
Taking Command at the Outset
When a serious dispute arises, it is very important that the right people are brought together; that further prejudicial documentation is not created; and that an objective cogent assessment of the situation is presented to senior management. While the in-house function will be expected to contribute significantly to this, the senior external litigator’s input is paramount. At the first meeting the litigator will be expected to provide reassurance that he or she recognises the issues involved, has had experience of dealing with them in the past and is already formulating what immediate steps should be taken. The litigator should be mindful of any individual senior managers’ personal concerns arising from the dispute, but ultimately must provide an objective assessment.
A litigator who can sum up in a page and a half or in a 5 minute conversation the merits of the dispute and the best way forward, will always be highly valued.
Too often lawyers are on full transmit mode and can be too intent at the outset on explaining why they have the necessary experience to do the job. The first meeting is inevitably an information gathering exercise and, in this, the ability to listen and ask the right questions to elicit the “weakest part” of the client’s case is essential.
Everybody can learn negotiation skills to a point; nevertheless really good negotiators have instinctive qualities that are very difficult to acquire through education. The ability to read and deal with people is paramount. The growth in mediation has, is anything, increased the amount of ‘face-to-face’ dealing. The ability to spot potential openings for settlement and weaknesses and concerns in the other side is an invaluable quality.
Calmness in the Face of Adversity
Inevitably, during the life-cycle of a case, something really detrimental to the client’s case will arise. Hopefully this will not be during the actual court hearing, as has unfortunately happened in my experience on a couple of occasions. There is always a tendency for an initial ‘panic’ when the bad news hits. A good litigator always starts with the approach that something unforeseen will crop up at some time or another and, when it does, it is best dealt with by keeping everyone calm and solution-focused.
Varying Approaches to Reaching Resolution
Litigation, ADR and arbitration are all very different ways of resolving a dispute. On occasions they will each separately and in combination be the best way forward. There is no ‘one-size-fits-all’ in resolving disputes. A good litigator should be able to work well with any of these.
Providing a Reality Check to the Client
There are occasions when the litigator has to take the risk of becoming very unpopular by telling his client something they clearly do not want to hear. In the short term, this can be detrimental to the relationship, but in the longer term, if the client is worth having, they will always realise that the advice that they were given was sound. The ability to communicate bad news in a constructive way is essential.
Being Able to See the Big Picture, But Still Not Losing Sight of the Detail
Cases can still sometimes be won and lost by the one document in ten thousand that proves or disproves liability. Therefore, it is essential that there is an overall process to effectively review all key evidence. The litigator must never lose sight of the overall broad strategy. There is always a risk that the litigator can be lost in the actual process – looking a week ahead, as opposed to three months or six months ahead. The litigator should know enough about the case to ask appropriate questions of any of his colleagues that are dealing with matters and to keep them on track, but should always retain a good overview.
Sense of Humour
Again, in any dispute there inevitably very tough times when the ability to laugh and lighten the mood is very important. When the relevant individual managers within the client are going through particular personal concerns involving the case, the ability to be able to empathise with these but still be objectively focussed, can be essential in retaining team spirit and commitment.
WorK Instinctively in Tandem
With the client Especially in mediations and negotiations where the senior negotiator from the client and the litigator are working together, it is really important that they come across as a team and can instinctively play off each other. When this doesn’t happen it can allow opponents to exploit differences in arguments being forward by client and litigator and also to pick them off separately for negotiation purposes. Instinctively working together more than doubles the ability to obtain a good result.
Last But Not Least, Being Commercial
It may be an overused term, but it is essential that a litigator possesses commercial sense. Nearly every commercial dispute comes down to money and the litigator who does not keep that thought to the forefront of his or her mind will never retain good clients.