13 January 2015

How Not to be an Average Commercial Litigation Lawyer

Published on 13 January 2015
They are the first line of offence in a last resort situation. When business disputes extend beyond negotiations, it falls to the commercial litigation lawyers to settle the issue. A great deal of pressure can rest on the shoulders of these litigatory gladiators – but with the help of Insights, you can ensure your client’s worst-case scenario results in a best-case outcome.

Keep up to speed with the Court Rules
Tannie Kwong is a College of Law alumnus and associate at Hicksons Lawyers. Having worked in commercial litigation for eight years, Kwong understands the significance of being familiar with the environment in which he works.

“Familiarity to with the Court Rules (e.g. UCPR, Federal Court Rules) is very important,” Kwong said.

“Always read the relevant practise notes and ensure that your clients comply with them. Over the last few years the Courts have placed significant emphasis on case management and in particular on the ‘section 56 overarching principles’ (Civil Procedure Act 2005 (NSW)), which means that the running of ‘just, quick and cheap’ proceedings is at the forefront of many judges’ minds.”

A solid understanding of Court Rules can make the difference between a hostile judge and a swift victory.

Define your objective with your client
Commercial litigator Harry H. Spector of commercial litigation firm Bazelon Less & Feldman P.C. stresses the value of constantly evaluating your mutual goals with your client.

“Litigation can take on a life of its own if the attorney and client lose sight of why the decision was made to litigate in the first place,” Spector said.

“Attorney and client should define the objective. Is it the recovery of money; something else unique to the case at hand; a means of beginning a negotiation; or is it the principle involved such that the client wants to send a message to others with whom [they] might have the same dispute? Whatever the objective, make sure it is realistic and achievable through litigation. Design the strategy – mould the case itself – to what the client wants.”

Always create a paper trail
Kwong says that when working in commercial litigation, it is crucial to keep records of everything.

“Because of the contentious nature of the work, commercial litigators should always keep detailed file notes of everything under the sun, even if it’s a simple ‘left message to return call’ note,” he said.

“Where you have a choice, you should try to keep your communications in writing. Sometimes if your draft-written communications get nasty, take a break and review it again after lunch or the next morning. Often this can help to take out the heat in some of your communications.”

In addition to assisting in client relations, Kwong said this habit can augment your ability to aid the court and earn a satisfactory outcome.

“Rather than feeling you’re in a fight all the time, one university professor once said in class ‘at the end of the day, everyone is there to just assist the Court’,” he said.

“As officers of the Court, the lawyers’ role is to simply provide the Court with as much information as possible to enable the judge to make his or her decision.”

Look beyond the Court
Spector says it can pay to consider alternatives to court-based litigation.

“The court system does not offer the only forum for resolving business disputes,” he said.

“Alternative Dispute Resolution (ADR) in the form of mediation, arbitration, mock trials with advisory juries or some combination thereof can expedite and minimise the cost of resolving a dispute.”

However, Spector warns that ADR can offer its pitfalls.

“The delays inherent in accommodating the schedules of parties and attorneys can render illusory the prospect that an arbitration will take less time and lead to a quicker result than a court proceeding. Depending on a client’s interest, there is a lot that can be said for the strict scheduling procedures of a no-nonsense judge.”