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What you should be looking for in a litigation solicitor

Many clients go to see their solicitor with a litigation problem and want a Rottweiler. Inspired by American TV dramas they think that they need an aggressive lawyer like Suits’ Harvey Specter but how well are they served by that sort of approach?
Litigation solicitors have been subtly rebranded. They do not conduct “litigation” any more. The phrase is now “dispute resolution” and properly so. Aggressive behaviour is counterproductive. If the parties’ lawyers cannot behave sensibly between themselves, how are they going to get their clients to agree on anything? Litigation costs money. The rules stress proportionality in respect of legal costs and in the very near future this will be reinforced with the introduction of fixed costs in fast track claims. Lord Jackson’s report suggests that disproportionate costs do not become proportionate just because they are necessary. This means that to run the case to trial properly a solicitor will have to do even more at the expense of the client with no prospect of getting it back from the other side at the end of the case.
It is not going to be easy. An obvious question arises in respect of property disputes. Your neighbour decides to increase the size of his garden by moving the fence a foot or so to your side. He has effectively stolen a strip of your land. You have the right to sue for damages for trespass and an injunction requiring him to restore the boundary line. You do so and the case is defended. A boundary dispute like this can cost tens of thousands of pounds and there have already been cases in which the Courts have criticised parties for incurring that sort of expense on a comparatively low valued piece of land. The fact that it is your land and that your neighbour has stolen it is irrelevant as is the fact that people tend to be very emotional about wrongful interference with their land. An Englishman’s home is his castle and must be fought for tooth and nail whatever the price. Would the TV lawyer who just goes for the throat at every opportunity do his best for the client? Certainly not.
The approach has to be conciliatory. As a matter of practice, many property disputes relating to boundaries will justify an interim injunction and the case settles after the offending neighbour adjusts to the loss of the land that he has misappropriated. However, there is no guarantee of this and the case may continue to trial.
The sensible litigation solicitor will suggest some form of alternative dispute resolution in his first letter to the defendant. This could be mediation or even the joint appointment of a surveyor by whose decision everyone agrees to be bound. One of the best ways to work towards solving the problem is a simple site meeting between the parties and their solicitors. Confrontation serves no purpose at all at such a meeting. Complaining about everything that has happened in the past simply builds tension. The parties want their day in court in the mistaken belief that they need to be vindicated by a judge. They need to understand that somebody has to lose and they run the risks of not being vindicated and paying both their solicitor’s bill and a large part of the other side’s. Risking £40,000 of legal fees for a strip of land 12 inches by 20 feet is pointless.
Better then to attend the site meeting and try to find out what would make the parties happy. They must be encouraged to look forward and not back. We need to find a solution. The parties have to live next door to each other when the case is finished. How can they co-exist after a bitter court battle? Perhaps the neighbour is prepared to pay for the piece of land which he has taken and the cost of a deed to bring it within his ownership. Perhaps he will accept that he is wrong and agree to restore the boundary line or give up some other right in return for being allowed to keep what he has taken.
It may be upsetting but this is the approach which the current system favours. A solicitor who can work with his opponent to persuade the parties settle serves his client much better than one who encourages litigation.