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Why are people still doing litigation?

Have they not seen my posts?

Yes, yes prima facie it's accessible, you sort of understand what's going on, you might be able to do some writing and a little bit of research, you think oh gosh, this is being a real lawyer. But the reality is, of course:

  • there is no real law
  • litigation, the purpose of your function, is a waste of time, it doesn't go anywhere - cases go on for years and years, when they should have just settled, and even if there is a judgment, there will be an appeal, or one side won't pay, or will go bankrupt and hide its assets - ultimately there are no winners in litigation but for the lawyers; you have an interest adverse to your clients', you want to write silly angry letters to rack up fees to justify your existence, and you engage with another firm who raises you in your little poker game.
  • you're also just really a letterbox and the barristers actually do the heavy lifting, you're just an intellectual amoeba, you write some memos to a client, write some angry holding letters, never conceding anything, and then instruct counsel. Big whoop.
  • MORE IMPORTANTLY: it's dominated by the mid market, US firms offer jobs which are few and far between, but even if you go there, the whole short term money vs long term opportunity thing re US firms is actually true for litigation because you won't get made up.
  • And you're placing yourself firmly in the middle of daily conflict which stresses you out, damages your health, makes you ugly both on the inside and out, and ultimately kills you.
  • You also have really bad or zero in-house options, and chances of partnership are slim, and also take another 5-10 years longer than other practice areas.

But yet every year a new cohort of idiots opt to ruin their lives by doing it. Bright eyed. Fresh faced. And every years the same bunch of cowards are afraid to confront the ugly truth, and just resign from their terrible jobs, and do just about anything else.

I have friends who are litigators and look down on other areas of law

And who take pride in silly legal500 rankings 

Yeah bro you're in a boutique with 5 people in it, all of you are listed

Partners at boutiques earn nothing 

The exits are terrible, you can't come back

So the boutiques suck, you're marginalised by any decent firm

It annoys me that people do litigation on 100k when they could be getting 300 elsewhere doing something better

They get into the game because they perceive it interesting and there's no file management or black lines

But that sh1t is just admin work for trainees and first years, it gets way better

Litigation just gets worse and with more pressure and with less money 

Actually you can have a good life doing litigation, if you organize it properly

  • Treat it as a game. No stress
  • Refuse to take calls before 11am
  • Leave at 5.30pm

Guy I knew did exactly that. Still working. Has a good life

And redundancy proof. Always need litigators

 

It doesn't work at all like that unless you're high street

You'll be in early. You'll be taking calls from corporate clients early. If they're in some countries like Switzerland, you'll be taking calls at 8am. You have no choice.

You'll be writing sh`tty little letters and memos until the wee hours.

It's not redundancy proof at all - litigation is the area where junior grunts are OK, partners to run things, one senior associate, and eventually the senior becomes too expensive and you need to sack them off. There's no partnership route, just a route to be kicked to the curb. You have no clients and can have no clients.

Other areas are more stable.

Respectfully disagree with Biggie on most points in the OP, but he is bang on the money in his third bullet point.

The way litigation is practiced by solicitors in England & Wales is anti-intellectual and perverse, and I say this as a solicitor admitted in England & Wales who practices litigation. It's an utterly astonishing approach to hire relatively intelligent, educated people, and then physically prohibit them from engaging in actual intellectual analysis of the issue at hand instead outsourcing the same to counsel. Those are the associates. And litigation partners long forgot about law and are completely unashamed about it. They would probably literally shit themselves if they had to ever undertake any actual work themselves (e.g. draft a skeleton and do some advocacy), but of course quite happy to charge £1000 ph. All to say on the first call "well we have a split profession here you see, so how about we convene another call, but this time with someone who actually knows the law at the bar". It's really a disgrace. 

The fact that you as a litigator "respectfully disagree" with a monumental fantasist parody poster very much supports the rest of your points that solicitor litigators are a fúcking waste of time and money 

Even if he is a fantasist he provides much more value and entertainment to this board than you, and hence, unlike you, deserves any disagreement to be prefixed by a mark of respect. 

You total fanny. That's your most pathetic riposte yet. He's a fantasist and deserves a mark of respect?  I don't agree with your implied point that litigators are a FWOT but I concede you make the point brilliantly.

I literally say hardly anything about myself, nor is anything about me fundamental to the points I make. I am in Dubai. I am in law. That's all I ever say about myself apart from sharing some of my neuroses. Yes, this is a persona, but also yes, this is also a large % of the real me.

That being said, some people are rude and miserable, and you don't need to engage with the relevant posters to know who they are.

Tbf biggie you do say a fair amount. You like Asian gals. You're earning lots of money in dubai. You're not a fan of litigation. You got jacked after breaking up with a gal etc.

How's your place different, Fosco (to the extent you can discuss without outing yourself), please?

Hi Barry, I agree with your points at 21:11. Whether or not people agree with Biggie, let's take his 3rd point at face value for argument's sake:

You're also just really a letterbox and the barristers actually do the heavy lifting, you're just an intellectual amoeba, you write some memos to a client, write some angry holding letters, never conceding anything, and then instruct counsel. Big whoop.

The disadvantage of London's bifurcated profession is that we outsource all written and oral advocacy to counsel. Our drafting is limited to correspondence and witness statements, with the latter meant to be factual and in witnesses' own words, not an outlet for frustrated advocates. This is particularly the case since the introduction of PD57AC in April this year. i.e. see Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), handed down last week (14 October 2021) at [37]: "The purpose of the new Practice Direction is [...] to eradicate the improper use of witness statements as vehicles for narrative, commentary and argument."

For junior and mid-level associates, supporting a highly experienced counsel team of barristers can be a fantastic learning experience. There's no way in other jobs I'd be in interesting cases in the Commercial Court on a regular basis, albeit in support on the back row. It's also easy to forget how we're very well paid and doing a far safer job than, say, our friends who trained as medics and ended up at the sharp end of Covid, while we were cowering at home in our pyjamas last year - or hundreds of other worse-paid careers. I have friends who had a horrible 2020, involving lots of dead people and terrible memories, and whatever happens to me career-wise, I'm grateful for what I have.

Medium/long-term, however, senior associates and junior litigation partners are still performing a similar 'supporting/coordinating' role as junior associates, but at a higher level: they remain conducting the orchestra, rather than being active players in it. This isn't to deprecate being a litigation partner,  as some people clearly love it. One partner at work last week explained to me how he enjoys the: (i) strategic management; (ii) controlling the client relationship; and (iii) instructing counsel - and he regards the counsel side of the work as rather bookish. He's a natural people person though, and I can see how clients must love him: a round peg in a round hole (for which I'm grateful: he brings in the work!). However, in a bifurcated profession, whatever the perceived merits, being a litigation partner does not include as much intellectual analysis as counsel, and certainly excludes court/tribunal-facing written and oral advocacy and is therefore missing part of the picture.

For people who want to do what Barry refers to as the intellectual analysis, i.e. submissions, and ultimately court/tribunal advocacy, two obvious ways to circumvent this within London are (1) moving to a firm which focuses on international arbitration; or (2) cross-training as a barrister. The equally obvious disadvantages are that (1) the arbitration market is saturated, hence places like HSF offering qualified solicitors "arbitration intern" roles for 6 months for the privilege of working for them; and (2) the commercial and chancery bar are saturated, with amazingly highly qualified juniors (i.e. all Oxbridge 1sts, and good luck to them) in top sets working for as low as £200/hour.

So, what overseas options are there, if any, for getting to do court/tribunal-facing written or oral advocacy, please? The only two I can think of are:

1. Dubai construction arbitration/DIFC. Dubai seems to have a thriving construction arbitration industry, and there are regular adverts for junior associates. It's a Marmite place (Dubai per se has been done to death, though), but if you're not female, not gay, and don't have a partner, the location itself matters less. What about construction arbitration work: what do people think about the merits as a change of career direction that way? Also, outwith construction arbitration, are there opportunities in DIFC litigation?

2. Offshore: BVI/Cayman. Offshore firms in BVI and Cayman advertise for solicitor advocates and barristers. Presumably, they actually use them? What are the merits of getting Higher Rights of Audience (Civil), and then applying for offshore jobs? i.e. do offshore firms outsource all written and oral advocacy to the same extent as London firms?

Comments on the above, and is there anything else I've not thought of?

Counsel only do as much as you want them to do.  The litigators I know who do very little "intellectual" work tend to have made a conscious decision not to, I dare say because of their own limitations. Sol-bazza teams can work as a partnership rather than a one-way stream of delegation - or, if you're busy on one matter, you can get the bazza to do more.  That's the beauty of it. 

The other point to make is choose the right bazza.  Some of them are very sensitive about hogging work they view as "their" work - especially pleadings etc.  But the best ones in my experience treat you as an equal or as "their junior", depending on seniority.

Also +1 to the international arbitration point above.  We quite often don't appoint counsel for that (though I always think it is best to do so at least for the advocacy).

In short, you're correct. You should get higher rights because it's cheap and easy, as a marketing tool, but it won't help much really offshore, they have their own exams and bar; but the point you make about the profession being fused, and acting as an advocate is correct.

Dubai arbitration is just kicking off, it's a good time to get into it imo.

Arbitration barely exists in London. There are a handful of specialised arbitration partners e.g. at 3 Crowns, one or two at Shearman, some at White & Case, Wilmer Hale etc. but most in the City are have a go arbitration partners if it comes in through the door, often from the States. Most guys are doing mostly litigation, some WCC and some arbitration if it turns up.

A lot of people end up Cayman because it pays so much better than London and the gig overall is much better. It's a 9-5 job, you'll get paid more than a US firm in London. Property in Cayman isn't that expensive to buy, just expensive to rent. Everyone I know in Cayman loves it. People in BVI are content too, but I've been and there's really not much there.

I call some people have come back from Dubai to London in litigation, but it's not all that easy moving jurisdiction. People do move back - some move back to offshore firms in London, some go offshore and maintain good relations with old firm and then slot back after 2-3 years (it's actually pretty common), an old pal of mine is head of a litigation funder and he used to be in BVI for years.

But it's not all that easy to just come back, but then you have to look at yourself in the mirror and decide if you want partnership at some of these shops in London. They get up to a lot of hijinks in Cayman and they all sleep and cheat around, but I wouldn't want to go there alone, I'd fear I'd get lonely. Dubai is a pretty safe bet - you're a big fish in a small pond. 

Just to be clear: offshore firms don't outsource anything, they do everything themselves 100%; pleadings, skeletons, the advocacy. They might use counsel in London for an additional opinion, if they need it, and often matters might have a London element to them, so in some, not all, matters they're instructed by London solicitors who will want to run the show.

There isn't a steady stream of arbitration work coming in through the door at most of the few firms known for it. It'll come along like buses. So there will be long periods of time with no arbitration, and those partners and associates have to adapt by handling litigation.

Ok I'll bite.

1. Most offshore firms either have their own counsel or bring in QCs from London for the big-ticket stuff.

2. Many (but not all) arbitration partners at decent firms only do arbitration. They will be on one or two of the same arbitrations for years, during which time they will also be doing BD to bring in more work.  They very rarely have long dry periods where they do litigation.

Mountain, JCD could be talking about my shop (no idea where he works). Very much a team effort b/w sols and counsel, and the involvement of counsel in pleadings etc. is often capacity dependent. Don't get me wrong, on plenty of occasions counsel will draft the pleadings but not without significant input from (and argument with) us.

We do a mix of international arbitration and commercial court stuff but tend more heavily to the former. As both you and JCD have said, int arb provides a lot more opportunity for engaging in written advocacy (and drafting flagrantly non-CPR-compliant witness statments, tbf). So culturally I suppose there is less of a taboo against getting stuck in. There are always smaller bits and bobs that give an opportunity for the juniors.

We are riddled with ex wig jockeys in our team so, again, I suspect the culture differs accordingly.

We often have to deal with experts or client ops guys from a v early stage so it often makes sense for us to handle that side of things. Some counsel have been clueless about the specifics of the expert subject matter until much later in the case.

Re 57AC, I haven't yet had to be involved in drafting a compliant one but: it remains true that most cases will turn on the narrative evidenced by the documents, not the witnesses, and given that the task of telling that story will now (iirc) be performed in submissions rather than witness statments, perhaps we might see more not less advocacy from sols? Can't see bazzas taking that task over entirely simply because it has moved to a different document.

 

 

 

 

 

"have their own counsel" - not interested in what you think you mean by this, but it'll be the partners doing the advocacy with the associates drafting.

"bring in QCs" - no, not necessarily. Getting opinions from counsel in London is common for big ticket stuff, not necessarily doing the advocacy, but yes, if it's very big ticket, instructed by London firm, of course. But day to day, associates and partners do the pleadings and advocacy themselves. They'll be in court week after week.

On the arb thing, not necessarily as you say. Look arbitration is much much much smaller than litigation - everyone does litigation and have big and small teams for it. Arbitration is rather niche, and there are few big arbitrations and clients always go to the best few names in the market. There are partners at firms identified above in tiny teams doing these long term arbitrations, one after another, but for the most part, that isn't happy, and it's feast and famine. As an associate, you can pigeonhole yourself into just doing arbitration, and have to spread yourself to cover other things, which is why you get very few pure arbitration specialists.

I’m a litigation solicitor. At my current place no matter how junior/senior the counsel are that I work with, there’s little division of labour between what we do. They will draft pleadings and I will then correct their pleadings. I always have the last say, although I expect some barristers probably think that they are letting me believe that. I often wonder how the dynamic often goes for them with other solicitors. I once worked at a firm which not only had that “post box” mentality but also shipped even administrative tasks to counsel to do, eg drafting party to party correspondence and letters to the court. I went from a front-end litigator with little reliance ever on counsel, to a glorified project manager with almost no connection to the dispute. I was only there because it was theoretically possible to charge for the time of a solicitor even though I was acting as postroom staff. That was incredibly tedious and I left as soon as I could and got back into the litigation game properly.

Interesting, thanks all. Most of the counsel we instruct in London also have active practices in  BVI, Cayman and DIFC, so I appreciate that there remains an element of outsourcing of advocacy by firms in those regions. That’s logical since the London bar are highly focused experts in their respective areas. (Indeed, one QC recently was complaining to us that the impact of Covid is that he no longer has an excuse to visit the BVI in person, now that Zoom has proven to be a perfectly adequate alternative!).

It takes a long time to get to that level of seniority though, so I’m sure it’s not mutually exclusive with offshore firms using ‘in house advocates’ for want of a more up market term. Also, I may be occasionally, briefly underwhelmed by the minutiae of a UK junior litigator’s life in some firms, but it still sounds better - and is undoubtedly far better paid - than junior juniors’ experience in the UK. I’ve heard lots of stories about schlepping around County courts in in the back end of beyond against litigants in person for many early years of practice. Or, in some sets, doing very little advocacy at all, in lieu of just supporting more senior counsel.

I like the people I currently work for and with, and I’m grateful to the former for the opportunities they have provided me, so I think I’ll focus on working as hard as I can, learning as much as I can for the next year or so, while also pursuing some part time qualifications, then actively explore both the offshore and Dubai options. Whatever happens, my doctor friends’ experiences last year remain my comparator for why I should be immensely grateful for my lot.

You were paid nothing, TB. 

All of my other points are valid too.

Litigation is mostly done by mid market firms; that's how it is. It's done by magic circle and silver, where it's letterbox dominion, and they generally hire their own organically. US firms thrive on laterals and rarely hire much.

Boutiques, even the best ones outside of Quinn, don't pay anything. 5PQE maybe 120k. Partner 150. Shudder.

None of 1-4 is true.

You can argue 1 as you can argue anything - and there are peaks and troughs of interesting work as there is in any area

3-4 are what are completely unarguable

TD you’re wrong. One of my mates who is 9PQE and does litigation has just put in his partnership application for DWF in Manchester. Finds out if he progresses to the interview/presentation stage next week.

I used to work with somebody else who was 15 years qualified and had hit a roadblock at his old firm. He has been recruited by Taylor Wessing as a Legal Director - so basically a partner at one of the best firms around. Just doesn’t happen to transactional bods.

Non-legal businesses value the transferable skills and commerciality of litigators - hence why there is such a demand for in-house litigators on quality packages. 

Nb123 to be fair to biggie he only cares about US or at a pinch magic circle stuff as that's the most dough. Partnership at DWF in the regions or LD at TW would be far less than US associate dolla even leaving aside the Dubai fetishism.

So you’ve got solicitors.  Are they also barristers, or do you have to become one?  What’s a lawyer - American for solicitor?  A QC is like an in house solicitor I think.  My dad knows one.
Asking for a friend who has a dispute about his driveway - he wants to sue his neighbour in mediation.

Thanks

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