claimitonline-blog

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(via https://www.youtube.com/watch?v=_6GmIZKIlKM)

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Harsh Words

“A gentle answer deflects anger,

but harsh words make tempers flare”.

So says a Bible prophecy which was not, I suspect, directed at lawyers specifically. Notwithstanding this, I think there is a lesson to be learned for me and others who work in contentious areas of the law.

The problem with lawyers is that they like to win arguments. This can often be a good thing for the clients they represent. However, lawyers have a peculiar inclination to try and be intellectually superior at any cost, and the cost is often their client’s.

Having practised as a dispute resolution lawyer for over 10 years I find it fascinating, for example, to observe the ways in which many lawyers purportedly seek to represent the interests of their clients in correspondence with opposing parties.

It is far too easy when faced with an aggressive letter from another party’s solicitor to respond with equal aggression or patronising rebuttals. Solicitors would, of course, argue that in doing so they are acting in the best interests of their client.

However, it seems to me that in many cases we would be acting in the best interests of the client by taking a much more conciliatory approach. The client might not feel the same way at the time but, as litigation progresses, it often becomes clear that the regular and expensive sparring between solicitors, with no apparent signs of progress, is not quite what the client had in mind. It is drawn out, complicated and expensive.

It will not be lost on a discerning reader that where a lawyer is charging an hourly rate for work done on a file, it is in their interests to wind people up, make tempers flare and keep that file running on as long as possible. A trial, with its requirement for thorough preparation and attendance at court, is the biggest money spinner of them all. It is also, however, the most stressful and dangerously unpredictable part of any litigation for a client.

While most solicitors will try and balance self-interest with serving the needs of the client, it seems that a client’s best interests can only be fully, transparently and properly represented when all of the lawyer’s self-interest is removed. This will never be fully possible, of course, but it is worth bearing in mind when considering what kind of solicitor you should use. The best will be able to balance aggression and devastating argument where appropriate with the ability to step back, count to ten, and consider whether more conciliatory options might produce a more satisfactory result (for the client rather than the partnership coffers!).

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Lessons From Dickens

Yesterday I finished watching the BBC adaptation of Charles Dickens’ famous novel, Bleak House.

For those who don’t know the novel, it centres on a high value court case which has dragged on for generations. Dickens introduces the case in the first chapter of his novel by saying that it “drones on” and “drags its dreary length before the Court, perennially hopeless”.

The case concerns a huge inheritance which promises to secure a life-changing fortune for the eventual beneficiaries, if they are ever found.

Eventually the intended beneficiaries of the estate are found and, sixty-five chapters later, we hear about the end of the case. However, the beneficiaries derive no benefit at all, as Dickens records, “the whole estate is found to have been absorbed in costs”.

Unfortunately, this type of story is not peculiar to the world of fiction. It is all too common in legal disputes that the legal fees spent fighting in court can far outweigh the amount that the parties are fighting over.

The problem is not limited to the type of case which, as in the case of Dickens’ Jarndyce v Jarndyce, has “become so complicated, that no man alive knows what it means”, or to those involving very large sums of money.

I recently dealt with a case which, after two years of legal wrangling, settled midway through the three-day trial. It was a relatively straightforward claim for £30,000, but the combined legal costs for the parties were approximately £120,000 (for which the losing party had to pick up the tab).

Dickens made no secret of his contempt for the court system which he viewed as close to useless. Sometimes, I’m inclined to agree. I’m also inclined to agree with Dickens that the law is not the “monstrous maze” that lawyers often make it out to be.

When seeking to explain the behaviour of a lawyer who preys on his client, using all his money on an ill-fated lawsuit, the Bleak House narrator states that “The one great principle of the English law is, to make business for itself”. While, sadly, this is often the case, it doesn’t have to be this way.

Alternative Dispute Resolution provides recognised methods of resolving disputes privately without the costs, wasted time and stress involved in taking a matter to court. This is what claimitonline is all about, and the benefits which it can offer to those involved in disputes are enormous.