Litigation lawyer

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One of the sainted risk controllers of a financial services firm, litigators deal with ongoing customer complaints — where the firm has disappointed expectations — and prosecute the firm’s claims when its clients have. In a well-run firm, you would like to think there was little to a litigation department. In many, it will resemble the military-industrial complex.

In recent times, some litigation teams have gone from half a junior lawyer, on flexi-time, between spells of maternity leave, to fully weaponised Death Stars of fusty, naturally censorious solicitors lacking the appetite for any call, however safe, or any risk, however remote. But as the world shakes off the malignities of the last decade, as business environs drifts back to the benign, there are signs the pendulum might be on its way back.

So, to keep the team in silk in times of fair fortune, the litigation team also claims an advisory function. They encourage their colleagues to consult them, ahead of time, to avoid future angst.

This is a theoretical but not actual function, because no-one in their right mind would ask a litigation lawyer to bless any course of action more contentious than sitting cross-legged in an air-conditioned padded cubicle having first signed a lengthy disclaimer. Signing off hypothetical risk scenarios is just not how litigation lawyers roll. They are are short the same option as is any risk controller: There is no upside from signing off any risk that has not been fully diffused in a circle of escalation, underwritten in blood by someone else (such as a Sullivan and Cromwell partner) and socialised to the General Counsel.

Nor are litigation lawyers any better a source of advice about contract drafting than trauma ward surgeons are about motor vehicle safety engineering. For, what better insight can a litigator give than, “for Christ’s sake, don’t wind up in court?” What commercial draftsperson didn’t know that?

For if you do wind up in court, hasn’t your contractual architecture already failed you utterly? To be sure, it might be a nice surprise to find the deckchair to which you are clinging floats, but how much nicer would it be were it still sitting on the sun-deck of a vessel still steaming towards the New World? Contract design should avoid icebergs. A litigator can only help with sorting out whose fault it is once one has been hit.

See also

• Litigation department
• Risk controller
• Chicken licken

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