Litigation lawyer

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

In a well-run firm, therefore, you might expect a litigation department to be an unglamorous backwater, and this is how it used to be. But, after the dislocations of recent times, many a department has 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, 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 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.

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 in the abstract is just not how litigators 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)^[1] 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 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.

Litigation lawyer

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