In a nutshell
Litigation solicitors assist clients in resolving civil disputes. Disputes can concern anything from unpaid bills or unfulfilled contract terms to problems between landlords and tenants, infringement of IP rights, construction-related claims, the liabilities of insurers, shipping cases, defective products, media and entertainment industry wrangles… the list is endless. And that’s just in the commercial sphere. The most common types of litigation involving private individuals are discussed at length in our personal injury overview.
If disputes are not settled by negotiation, they will be concluded either by court litigation or an alternative form of dispute resolution. The most common other methods are arbitration and mediation. The former is often stipulated as the preferred method in commercial contracts, and is essentially a private court, while the latter is generally achieved through structured negotiations between the parties, overseen by an independent mediator. These methods can still be problematic: arbitration is almost as expensive as litigating, mediation is not necessarily adequate for complex matters, and some argue that opponents can use alternative dispute resolution as a means of ‘bleeding’ money from each other or as covert interrogation.
Confusingly, there are two divisions of the High Court dealing with civil cases – the Chancery Division and the Queen’s Bench Division (QBD) – and each hears different types of cases. For instance, the Chancery Division handles matters relating to trusts, probate, insolvency, business and land law, while the QBD hears various contract law and personal injury/general negligence cases.
What lawyers do
- Advise claimants on whether they have a valid claim, and defendants on whether to settle or fight a claim made against them.
- Gather evidence and witnesses to support the client’s position; develop case strategies.
- Issue court proceedings or embark on a process of alternative dispute resolution if correspondence with the opposition does not produce a satisfactory result.
- Represent clients at pre-trial hearings and case management conferences.
- Attend conferences with barristers and brief them to conduct advocacy in hearings, trials and arbitrations.
- Attend trials, arbitrations and mediations with clients; provide assistance to barristers.
Realities of the job
- Work is driven by procedural rules and the timetable of the courts. Good litigators understand how best to manoeuvre within the system while also developing winning case strategies.
- The phenomenal amount of paperwork generated means that young litigators spend much of their time sifting through documents, scheduling and copying them in order to provide the court and all other parties with an agreed bundle of evidence.
- Litigators need to express themselves succinctly and precisely.
- Unless the claim value is small, the solicitor’s job is more about case preparation than court performance. Solicitor advocates are gaining ground, and once properly qualified they can appear in the higher courts. Nonetheless, barristers still dominate court advocacy and the performance of some solicitor advocates has been criticised by the judiciary.
- Trainee workloads largely depend on the type of firm and the type of clients represented. Big City firms won’t give trainees free rein on huge international banking disputes – they might not even go to court during their training contract – but they will be able to offer a small contribution to headline-making cases. Firms handling much smaller claims will often expect trainees to deal with all aspects of a case, from drafting correspondence and interim court applications to meetings with clients and settlement negotiations.
- There are a number of litigation-led law firms that handle cases of all sizes, and these present the best opportunities for a litigation-heavy training contract. The competition for litigation jobs at NQ level is fierce, so concentrate on litigation-led firms if you are certain of your leanings.
- The Solicitors Regulation Authority (SRA) requires all trainee solicitors to gain some experience working on disputes. People tend to learn early on whether they are suited to this kind of work. At big City firms, the SRA's Practice Skills Standards can be fulfilled by a litigation crash course. Experience in specialised areas, like real estate litigation and employment, can also satisfy the requirement.
- Despite a few firms starting up in-house advocacy units, the courts remain dominated by barristers, who are felt to have the edge when it comes to the skills and expertise needed to advocate. If you are determined to become both a solicitor and an advocate, certain areas of practice have more scope for advocacy – for example, family, crime, employment and lower-value civil litigation.
- Many businesses have turned to law firms for advice as the effects of the pandemic – supply chain disruption, weaker cashflow increasing creditor risk – have left many unable to fulfil the obligations laid out in their contracts. This includes renegotiating contracts and invoking any ‘force majeure’ clauses. A major question increasingly being asked is whether the outbreak or its consequences amount to a force majeure event, that is, an unforeseeable circumstance that prevents someone from fulfilling a contract.
- Litigation on both sides of the Atlantic is increasing as asset values drop and cashflow is put at risk. Research from Freshfields has shown that sectors with the largest decline in market capitalisation include commercial aerospace, air and travel, oil and gas, banks, insurance, and automotive assembly.
- Practitioners operating in the litigation and dispute resolution sector can expect to see some fairly significant changes to the constitutional landscape in the wake of the EU referendum. Wholly domestic court processes are unlikely to be affected, but litigation and other forms of dispute resolution with cross-border facets are directly affected by the EU legal framework. If, post-Brexit, the UK's legislation were to conflict with that of the EU, there would be a marked drop in efficiency, parallel proceedings might produce conflicting judgments, and the enforcement of decisions could also prove problematic. Litigators may also decide that the risk of pursuing cross-border disputes with EU counterparties is commercially unjustifiable.
- London has long been a popular forum for international litigation and arbitration, but in recent years a number of other financial centres, including Singapore, Dubai and Qatar, have been setting up English-speaking commercial courts staffed by British and international judges in an effort to challenge London's dominance. London's reputation as a hub of sophisticated financial markets and legal systems might be at risk if the conclusion of the Brexit process sees Europe's financial centre migrate towards the continent, taking its disputes and the legal services with it.
- The threat to London grew after Singapore announced its UN-backed mediation convention in 2019. Signed by 46 countries including China, the US, India and South Korea, the proposals provide for enforcement of mediated agreements across borders and currently exclude the EU and UK.
- Artificial intelligence is shaking up various legal practice areas, not least litigation. According to a Consilio survey, legal professionals predict that litigation analysis will be the second most heavily impacted legal task affected by AI after e-discovery. The key drivers for AI in UK litigation are managing data and litigation costs, the challenge of doing more higher-risk work with less resources, and judicial support for predictive coding and other tech measures. The key uses of AI in UK litigation include disclosure document review, predicting judgments and analysing data. If you haven’t jumped on the tech bandwagon, now is as good a time as any.
- Cybersecurity is one of the fastest-growing sectors for litigation.
- Today's corporations are much more mindful of their non-legal obligations and public perception than their predecessors. Future litigation is increasingly likely to take into consideration that a legal or fiscal win might not be viewed as a victory if it's publicly deemed to be conducted in an ugly manner.
- The same research points out that while litigation born out of the 2008 crisis has centred on allegations of fraud, negligence and bad faith, litigation emerging from the pandemic will instead centre on issues of allocation and assumption of risk.
- Many anticipate a sharp rise in the number of class action filings in many countries around the world in the form of consumer claims, securities litigations, mass employment claims and insurance claims. In the UK, recent procedural and legislative changes have also made it easier to initiate class actions.
- The 2008 crisis showed that some instances of litigation born out of crisis can take years to resolve their many issues. For example, litigation revolving around the collapse of Lehman Brothers in 2008 is still continuing today.