Opinion: Edward Gratwick

Not so long ago, in a Scottish court not too far away, I was involved in a case which prompted me to think about the way litigation solicitors act towards one another across the front lines of a dispute. For the clients involved on both sides of the case, all the usual things could be said. It was high stakes, high value, and needed to be progressed as fast as humanly possible. The case was perhaps different from some others because those things were actually true, given its particular circumstances.

The impact on the solicitors involved in the case is worth some thought, and a challenge to the idea that litigation lawyers need to behave in a particular way, or simply and silently absorb the pressure and disruption caused by that behaviour, saying it’s just part of the game. It doesn’t need to be like that.

When dealing with cases such as this, litigation solicitors can come under pressure from their clients and from themselves. We’re all competitive, and we all want to win.

We want to get the best possible result for our clients. We also want to avoid the difficult conversations about costs, and choices made during the case with the benefit of hindsight of the kind only available once the judge’s written opinion has been issued.

Working closely with a client team under these pressures can make you closely empathise with the client and feel the ups and downs of the case personally. This obviously has the potential to pull against the duties we owe to the court and to professional colleagues.

Everyone will have their own examples of opponent solicitors’ “bad” behaviour in the conduct of their cases. Things that you can sense are done a certain way in order to present an image or narrative to their clients, or apply pressure to the other professionals involved in the case.

It’s unusual that this helps the substantive presentation of the case.

I have in mind things such as the exaggerated and incredulous language of some litigation letters; the aggressive voicemails (often in stark contrast to actual telephone or face-to-face manner); or the refusal to answer the phone or to return a call. I have had my share of the letters received at 5.30 on a Friday afternoon, seemingly sent to wreck the client’s (and solicitors’) weekend and family plans. Or worse, attempts to impose artificial and short deadlines for their own sake, or accelerate procedure in the court causing maximum disruption to the opponent and inflating the “litigation cost” in the hope of forcing a compromise.

Zealous advocacy doesn’t require this sort of behaviour. Zealous advocacy does not require the solicitors or counsel on a case to try to hurt their professional colleagues in the hope of securing some tactical advantage in the case. It doesn’t require deliberately adding to the mental and emotional load of an already stressful and high-pressure profession, or the collateral impact on personal lives and children.

My firm (along with Barclays and Pinsent Masons) founded the Mindful Business Charter (“MBC”) some years ago, and many firms are now signatories to it. To quote Richard Martin, executive officer of the MBC, on why it matters: “Stress impacts our health, it costs lives, and it makes us and our businesses less productive. We know this. Much of our stress is caused by the way we work and interact with each other; the unconscious, unnecessary and often unnoticed impact we have.”

I doubt any of the bad litigation behaviours I mention in the earlier paragraphs have ever swung a marginal outcome in favour of the aggressor. I therefore wonder why they are even attempted. I believe we can be better than that and that litigation solicitors should be mindful of the way we work, the way we conduct our cases, and the (un)intended impact on opponents.

This may sometimes mean hard conversations with clients demanding aggression. If that’s what’s necessary to remove some of the needless impact on the lives of litigation solicitors and encourage greater diversity, then it’s the right thing to do and will benefit us all.

It’s certainly my intention to think about how I do my job and the impact it has on my professional colleagues across the front lines of my cases.