We’ve all experienced the nastiness, aggressiveness & competitiveness that happens during litigation. If you are a lawyer not inclined to be like this (and many are not) it takes some self-control not to get furious and want to hit back, playing the ‘tit for tat’ game. This behaviour often leads clients to want their lawyer to be equally aggressive and it makes them more determined than ever to litigate. Taking a deep breath and focusing on resolution isn’t easy.
I was prompted to write this because of a lawyer saying: ‘You work for a charity so I assume you work part-time’ – intending no doubt to be a put down and assert his superiority. How could a female working part time possibly be a proper lawyer? My desire to justify my existence was high but why on earth should I be defending my position as opposed to my clients? How is this sort of patronising remark going to help the lawyer’s client if there is any appetite for resolving the dispute and avoiding litigation?
This lawyer clearly didn’t want to have a constructive conversation about avoiding litigation – his intention was to draw me into a detailed argument about the legal pros and cons of my client’s case. For the record, I was more than able to do that – but where would it get us? He would simply defend his client and I would defend mine. Result: stalemate. An off the record conversation’s sole purpose when both parties are represented, should be to see if resolution can be reached and this is best done by trying to find a solution. It is not a detailed rehearsal of the facts and legal arguments, which are unlikely to be agreed.
If warranted, (e.g. where an employer does not understand the nature of the employee’s argument) a detailed account of the case can be put in writing. But usually it is enough that the lawyers understand their respective client’s strengths and weaknesses and rarely is resolution furthered by an argument over the finer detail of the legal argument. I would go so far as to say that it is more likely to lead to aggression and point scoring which only entrenches the parties’ positions making resolution more difficult.
Anyway why do lawyers threaten costs ? Do they think this will frighten their opponent? Really? I see it as a weakness put forward by lawyers who should know better. Yes, it may be appropriate where the claim is hopeless, e.g. out of time, and where there is a reasoned argument justifying it. But, the blunt threat in response to a suggestion that a claim may be made is not only pointless but misconceived.
At YESS we don’t litigate so creating this type of personal acrimony is not in our interests. We are also a charity that cannot make a profit from our advice and don’t have billing targets. We try very hard to keep costs to a minimum and avoid the need for litigation or aggressiveness. After 3 years of successfully resolving disputes in a civilised way my conclusion remains the same. As one barrister said ‘litigation is for fools with deep pockets’. Everyone is poorer save for the lawyer.