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Every client wants to survive and hopefully succeed when it comes to litigation. Survival and success can mean different things. To survive a dispute, you need to get through it all without losing your reputation, destroying your sanity, harming your means to earn a living, or incurring a substantial financial loss. Succeeding in litigation involves achieving the outcome you hoped for by either defeating a claim made against you, minimising your losses (if losses are certain) or winning against the other party and being awarded your costs. Clearly, this is something worth considering given the consequences involved include not only the financial aspects but also the delays that can be encountered.
No doubt this topic is very complicated and not necessarily capable of being reduced to only a simple set of rules. Having said that, some simple rules can assist in increasing your chances of achieving the type of result that you can live with. In this article I have boiled the question down to whether one should crash and bash or devote time and resources to planning as best one can. The answer might seem simple, but the reality of what litigation lawyers encounter in everyday practice is surprising.
It is not uncommon for a client to see a commercial litigation lawyer about their grievance and then expect immediate and tangible action. Such clients generally prefer to give their lawyers limited amounts of information and then expect their lawyer to immediately issue a letter of demand (or response) without spending much time delving into the issues. Such an approach is called a crash and bash style approach because the lawyer is discouraged from (a) collecting all the relevant information, (b) spending time carefully reading all of the documents, (c) clarifying instructions in a conference, (d) preparing an initial advice on prospects i.e. covering the strengths and weaknesses of the case and the risks and costs involved, (e) obtaining further instructions from the client and then (f) entering into correspondence with the other party. No doubt the steps mentioned in points (a) to (f) will greatly increase the initial costs for a client and therein lies the rub. Most clients simply cannot see the point of making a reasonably substantial investment upfront and in the early stages of a dispute (as that appears to be something reserved for those in the know). To make the point an analogy can be drawn between someone wishing to build a house by demanding that bricks be laid immediately and someone else insisting on a draughtsman preparing some plans and a quantity surveyor preparing the costings.
Clearly, planning litigation is critical and to crash and bash is in effect a plan to fail. In an article by the Honourable Justice Rob called “Reflections on Survival and Success in Litigation” and published in the August 2017 edition of the Commercial Law Quarterly some guidance was offered on increasing your chances of succeeding in litigation. On my understanding the key points made included: –
- taking the time to properly assess the client’s prospects early on and before that client commits to the case
- avoiding an embellishment of the client’s case as the preference is to make a realistic assessment of prospects even if such unpleasant news would not be well received
- being weary of “confirmation bias” and instead appreciating the role of cognitive dissonance
- helping the client get to the most appropriate lawyer which may involve briefing counsel early on
- crafting the evidence as a tradesman would
- appreciating that litigation is a marathon and not a sprint
- acknowledging the need to be flexible and to chart a different course if necessary
- being as collegiate as possible with the other side (sometimes easier said than done)
- never forgetting that a compromise or settlement is generally the best outcome for a client
- staying objective about the clients rights even when emotion and irrationality exists
- et cetera.
As such this article advocates for the need to plan disputes carefully and well in advance given there are significant risks associated with crashing and bashing headlong into an argument. Some clients simply cannot be dissuaded from a desire to commence “laying the bricks” immediately because they would like to see progress being made right away despite what such a "house may look like". Naturally, a much better "house" may be built by planning a case early on even though that may involve getting an advice on prospects and/or an advice on evidence when the costs of such initial planning can be substantial but certainly well worth it when the stakes are high.
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