Litigation lawyer

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One of the sainted risk controller functions of a financial services firm, the litigation department deals with customer claims, where the firm has disappointed expectations, and prosecutes the firm’s own ones, where its clients have.

In a well-run firm, therefore, you might expect litigation to be an unglamorous backwater, and this is how it used to be.

But, after the dislocations of recent times, many a litigation department has, like human resources, come to resemble some kind of military-industrial complex. Teams have gone from half a junior lawyer, on flexi-time, between spells of maternity leave, to fully weaponised Death Stars of fusty, censorious solicitors who will decline to make any call, however safe, or sanction any risk, however remote.

Litigation advisory

But as the world shakes off the malignities of the last decade; as the business environs drift back to the benign, the pendulum might at last be falling back. So, to keep themselves in silk in times of fair fortune, litigation teams have invented an advisory function. They encourage their colleagues to consult them, ahead of time, to avoid future angst. They have contrived “risk radars”, invoking some kind of sixth sense for trouble that has proven so far elusive, and “risk taxonomies”, by which they subdivide the future by reference to their bitter experiences of the past — all this despite their regular admonitions not to regard it as any kind of guide to what is yet to come.

So, “litigation advisory” 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 a padded cubicle having first signed a disclaimer. Signing off hypothetical risk scenarios in the abstract is just not how litigators roll. They are are short the same option as is any other risk controller, only they know in detail what goes down when that option is exercised: they know better than anyone that 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)[1] and socialised to the General Counsel.

Litigators as contract consultants

Nor are litigators any better a source of advice about contract drafting than are trauma surgeons about motor-vehicle 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 contract already failed you utterly? To be sure, it might be a nice surprise to find the deckchair to which you are clinging floats, even as the ship whose name is stencilled on it descends to a watery tomb a mile below you, but how much nicer would it be, were it still sitting on the sun-deck of that very vessel, with you on it, steaming sedately towards the New World?

Contract design should avoid icebergs. A litigator can only help sort out whose fault it is when one has been hit.

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  1. Who, thanks to a crafty assumption on page 73 of its legal opinion won’t have underwritten it at all.