The secret to success in commercial litigation

I have been litigating for 25 years.  When I was at school and as a student, I played league chess to a fair standard.  I don’t know whether chess made me good at litigation or if those things that make a person good at litigation also makes them good at chess.  However, I don’t think that it is a coincidence that here at ORJ, we have been extremely successful litigators for many years.

You are possibly reading this article because you are thinking of instructing ORJ (a wise choice!), or you may be simply looking for some help.  Either way, you are more than welcome to read about what we have learned about success in commercial litigation, and we hope it helps you.  There are many articles on our website.

This particular article relates to the first three rules of litigation and it includes ‘The Golden Rule’

Rule 1:  Litigation is a fact of commercial life

At some point, almost everyone in business faces litigation.  I have three brothers; one is a director of a computer company, he litigates all the time; one is a lawyer, he has not been immune to the process; the last brother owns a smart bed and breakfast, and even he has had to litigate (not with the guests, but with builders and accountants).  So, if litigation lands on your desk, don’t feel like you have made a ghastly mistake and that someone has taken advantage when you could have prevented it.  The likelihood is that you had it coming sooner or later.  The better you deal with it, the better the outcome.  This leads to my second rule, there will be an outcome and it is surprisingly predictable.

Rule 2:  Litigation is a certain and predictable process

Litigation will either

• End in a trial
• End in an insolvency of one party or another, or
• End in a settlement.

A recent statistic showed that only 4% of cases issued ended in a trial.  I believe that number has now fallen to an even lower percentage.  Litigants weigh up what the judge’s decision will be and deal out rather than test their theory, and everything about the process is designed to promote a settlement.

The hard fact is that the person with the best case will get the best settlement.  If he can persuade the other party that he is composed and organised enough to get to trial, he almost certainly won’t have to.  That’s our job, we put you in the best place possible to ensure you obtain a good result.  We are focussed on achieving that outcome and we are very good at it.

Obviously if you are a claimant you must exercise caution when pursuing defendants with no assets, and in my experience, wealthy claimants with bad cases come unstuck too.  Conversely, someone with a good case against a solvent opponent is very likely to achieve a good settlement.

This leads me to the third rule, the Golden Rule.

There are three elements to this rule:

• If you are making a legal call, like terminating a contract (or if you can see a dispute arising in correspondence) speak to your lawyer – or better still, speak to me! Make that legal call exactly in accordance with the law.  A good case can be ruined by a mistake at this stage.
• From your very first letter describing your grievance, get the facts absolutely right. Remember the case settles on the anticipation of what a judge may rule.  You must protect your credibility, this is so important to a judge.  At ORJ we call this ‘protecting a client from bad instructions’.  If you tell us what happened, we always check it against all the known evidence before we write the first letter and we will challenge you if we feel yourare mistaken.  This protects your credibility.  We continue to do this throughout the case.  We see so many lawyers who don’t bother to protect their client’s credibility and it is their client who is left to pay at the end.
• Match the facts with the law and work out the likely outcome. That’s our job and we are very good at it.  If the stakes are high we can bring in a barrister (we deal with the best) at modest cost, which can be agreed with you in advance.

Remember, getting the case right from the start will protect you from making the wrong legal call; it will save one of your most important assets, your credibility, and it will allow us to advise you if you have a good case.  If you do, and your opponent is solvent, the chance I that you will achieve a favourable settlement.

Litigation can be an uncertain process when lawyers don’t take care to ensure their clients get it right from the start.  That won’t happen if you instruct ORJ.

For any enquiries or more information, please send an email to our Commercial Litigation specialist, Patrick.Tedstone@orj.co.uk, or call 01785 223440.