Litigation – the Practicalities of Going to Court? Part II

Posted on Posted in court, legal, litigation, suit

Continuation from http://samchoong.com/2018/08/13/litigation-practicalities-going-court-part/

 

2) So who do you appoint? How do you choose a lawyer? Do you pick the firm or do you pick the lawyer?

People watch dramatic TV court scenes of an erudite lawyer aggressively questioning a witness or the defendant. This may give the impression that a good lawyer is an aggressive one. Sometimes, it may be better to have a lawyer who is more measured in his response and questioning; one whom listens and looks out for spoken and unspoken indicators rather than to be engrossed only in high drama and yet miss the important clues or subtle nuances.

 Like everyone, lawyers have differing personalities and distinct styles of working. When appointing your lawyer, here are some traits to consider:

 

a) Some lawyers are more suited to advising larger companies. They are legalistic in their advice and expect you to understand the set of options presented. This style is suitable if you are able to grasp legal concepts or are an MNC with an experienced internal legal counsel to decipher advice from your lawyer AND advise on the pros and cons of the lawyer’s recommendations. These lawyers are quick and expect you to work according to their rhythm. They’ll use legal terms in their explanation and expect you to grasp these with minimal explanation. They are great litigators and bright but bright people may not necessarily be good teachers. Clients who are well versed in the law or are used to litigation are suited to such lawyers;

b) Some lawyers update you only when they think it is necessary. These litigators are suited to clients who know their lawyer’s style well and fully trust their judgement and are familiar with the litigation process or are big picture people and are less interested in the details;

c) Others prefer to communicate and see you as a partner and will take time to explain in lay terms to make sure you understand. These guys are good lawyers but are also able to explain their points clearly when they sense clients are not in complete comprehension. The downside of this is the process may take longer and time costs tend to go up.

 

As for whether to select a lawyer or the firm, although there are advantages of working with a well-known and sizeable firm (an extensive library and strong research team to name a few), if you’re the type of personality that needs more attention (and likely to choose the paragraph 2(c) lawyer above, it would be advisable to choose the lawyer as opposed to the firm. As convenient as it might be to pick a well-known firm and consider your job done, you may, however, be allocated a lawyer who doesn’t complement your needs. Or you may appoint a lawyer you like but most of the work could end up being carried out by an assistant lawyer. However, if you approach the appointment of your legal team from the choice of lawyer, then you could specify whom you wish to do the work.

 

In your appointment of a lawyer, don’t write off boutique size or “one man” firms (where the law firm is made up of one lawyer and possibly an assistant lawyer) as there are some formidable close-knit and hands-on boutique litigation firms in the industry. Moreover with a “one man” firm you may well have the undivided attention of the lawyer. Naturally, more research needs to be done by you to identify the “right” lawyer but the smooth flow of communication and the dynamic of a close client-lawyer partnership would make this worthwhile as the trial goes on.

 

One scenario which can ensure the process has an added layer of safeguards is to hire a second team of lawyers, namely solicitors. These lawyers can act as your intermediate clearinghouse to ensure that all information going in and out is salient and will serve to boost your case or expedite a resolution.   Solicitors may be worth their weight in gold because they can be instrumental in substantial savings if they can settle the matter quickly or find alternative means of resolving the matter.

 

Solicitors: your clearinghouse and counsellor in one

Some clients prefer to have an intermediary lawyer to provide some interface between them and the litigation boys and as an extra pair of eyes and ears (to look out for an opportunity for settlement and explore other means of resolving the matter). This two-lawyer model is similar to the barrister-solicitor system practiced in split profession jurisdictions like the UK. In such a system, the solicitor is usually someone known and trusted by the client and he is the first point of contact at the first sign of “trouble”. He assesses the issues and, if necessary (He can make the critical call as to whether going to court is the best solution. This is critical as this decision may impact your life for the next few years), appoints the appropriate barrister (lawyer who specialises in court work or a specific area of court work) to argue the matter in court.

 

Another argument for having a second legal team with a more objective position (more conducive to reconciliation) is for this team to look at other options such as settlement or mediation whilst the litigation team focuses on the battle. It may be easier for someone with a neutral disposition to reconcile as opposed to the adversarial stance of the court lawyer. In court, as in negotiations, such “good cop, bad cop” partnerships may work wonders. The settlement option should not be discounted even if it was rejected at the beginning. It can still be explored mid-way to prevent the dispute from escalating through the various stages such as at the High Court, Court of Appeal and Federal Court.

 

Finally, a solicitor who is familiar with the client may also be familiar with the facts of the case. If you have access to such solicitors, they may be able to assist the client gather (as mentioned above in paragraph 1 above) all the relevant facts. If left unguided and under the extremes of litigation, the client who doesn’t know what is legally relevant may overwhelm the litigation lawyer by throwing all the facts (whether relevant or not) at him.

 

Litigation can be fast-paced. In addition to conventional email there are now many other communication modes such as WhatsApp, Wechat, Line, Kakao and the list goes on. So there could be a deluge of information exchanges, and vital information may be overlooked. A solicitor can act as an interface as well as an assistant to keep the information and process on track. Because of the higher cost, this model may not suit everyone. Such a relationship suits clients who are in business and see value in having a third party deal with the details (not to mention shielding such clients from the negative energy) of the litigation process while they focus on running their business.

Litigation is never easy and with the above, I hope you now have a clearer understanding of what going to court entails and that you have picked up some strategic pointers.

Sam Choong

Author: Sam Choong

Sam Choong is a lawyer practising in Malaysia. His areas of practice include estate planning, wills and UK inheritance tax for expats residing or seeking to retire in Malaysia.

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