To Litigate Or Problem-Solve? That Is The Question.
Jikoa is one of our Senior Consultants and specialises in providing legal support to clients and business owners. Here’s an inside view from him, on what it’s like to have to deal with legal representatives in dispute resolutions.
It’s upsetting to see a fellow lawyer with his nose stuck in the textbooks we get told to read at law school. I had an awkward case a few days ago. You didn’t need a law degree to decipher the protagonists had a problem, because for months prior to our day in court, I felt I had been banging my head against a wall with the other side’s solicitor.
I kept asking myself how he couldn’t he see there was actually a problem between the parties? Couldn’t he see my client had a problem paying for stuff that don’t work? Couldn’t he see that the stuff doesn’t actually work?! No, all he wanted was to go to court and argue his case, no matter how weak his client’s position was! So we did – go to court that is – and in response to my final attempt to resolve the matter before we met the judge – his best line was to ask, “Why should [he] make the case for the other side?”. Well listen up, you are an officer of the court, and that is what we are required to do. You may well ask: What does that mean? It means that whilst solicitors have a professional obligation to your client, they also have an equal obligation to assist the court. It is extremely unlikely that sitting on your hands and only detaching them from your backside to litigate, will be construed as assisting the court.
A long day it was but thankfully the judge saw the wood for the trees, and found supported our client’s position. The best part of my day came when the judge apologised for interrupting me to which I replied, that in fact I concurred completely with her summation. Yes, it was that kind of afternoon when the law would not be made an ass. Rest assured, I did nothing whatsoever to restrain the sense of vindication that wafted over me.
The moral of the case? The court rules, protocols and practice directions have one central thread and that is a lawyer is expected to try to solve problems first, second and maybe even third. All the dandy litigation skills in the world matter very little these days, if you can’t show the court you have tried demonstrably so, to solve what in most cases are usually straightforward problems.
Whilst we are happy to support clients through litigation matters, we also encourage them to attempt to resolve their differences and have had a great deal of success of achieving this without the need to resort to expensive litigation
