Tomorrow belongs to those practitioners who grasp that clients want quick and speedy dispute resolution that suit their long-term goals. More victories, less fighting, is the answer, writes Maryanne Loughnan SC
WE have just bid adieu to the first decade of the twenty-first century. This century has started out like a new born child with the noughties marked by excesses. The next decade, the teens, will see the Ship of State righting itself. A maturity in outlook will be the required approach.
For practitioners it was a decade of awesome revelation as we watched litigation turn into “monolithigation” - C7, Bell Group and OneTel, to name some of the outstanding examples. Behind these cases was a plethora of large-scale proceedings.
As the cost of conducting such proceedings burgeoned the expression “bet-the company” litigation came into use. If the trend continues, litigation will become internecine. Are we now at the point where a process driven style of litigation or “conventional warfare” is outdated because of the “nuclear” effect of the bill that goes with it?
Everyone in the profession agrees it has to stop - otherwise we litigators will be making ourselves irrelevant to resolving conflict. In the most extreme cases, individuals will resort to all of the time-honoured forms of coercion and extortion. Let’s face it, when it’s suggested that rules and procedures be tweaked or even overhauled no one has been able to come up with the necessary fix. I wonder when this dilemma gets sorted whether we will all look back and groan, “it was the culture, stupid”.
Tomorrow belongs to those practitioners who grasp that clients want quick and speedy outcomes that suit their long-term goals. These lawyers know every aspect of their art back to front and how to use creative methods to resolve differences. Warhorses who charge at their opponent with all their might are like the knights of old - weighed down by armour, chainmail and weapons. In modern times this translates to trolley-loads of court book volumes.
We well know that for every warhorse there is an opposite number and they will exchange blows to the death. One side will surely lose with awful consequences and the “winner” may find that they are in a negative position compared to when the dispute erupted. This is how wars end. No doubt both sides were advised they had “a good arguable case”.
Is that level of assessment sufficient to warrant a client investing millions of dollars in legal fees? In some cases It may well be, given the downside of losing – such as loss of liberty, a ban or brand destruction. These are matters that need to be weighed carefully by a fully informed client.
The new lawyer must be a nimble, solution-focused operator attuned to the client’s commercial objectives. At their most effective, they will undertake “fly-in/fly out” manoeuvres which will obtain a great commercial outcome with the client barely feeling their presence.
They must be expert at gathering intelligence and planning an effective and swift campaign which successfully converts to satisfying the client’s goals. Master Sun Tzu in his perennial treatise The Art of War said: "Therefore one hundred victories in one hundred battles is not skilful. Seizing the enemy without fighting is the most skilful."
Access to valuable Information at the earliest possible opportunity is the key to future practice. This does not mean the production of container-loads of discoverable documents. As a matter comes to hand the effective lawyer will gather the information necessary to provide to their client, as soon as practicable, a risk analysis which includes best case/worst case scenarios.
In future editions of The New Lawyer, my colleague William Lye and I will report on effective methods of information gathering and dispute resolution. We both agree that the jurisdiction we practise in is well placed to take a significant role in dispute resolution in the Asia-Pacific region – let’s not spoil this opportunity.
Maryanne Loughnan SC is a member of the Victorian Bar practising commercial law. View her profile at: http://www.vicbar.com.au/c.1.3.aspx?RollNumber=2401