Civil litigation is a funny business. In some ways it is all “litigation”, and a litigator is as different from a non-litigator as a toaster is from a fridge. It is all about making, or defending, claims and involves courts, threats, steely nerves and the management of risk.
Yet it also has its distinctions, and we would naturally describe ourselves as personal injury litigators, or property litigators; we all realise that the law is too big to know all of it, and we have all been told that Dabbling is Dangerous (even if we don’t always believe it).
This is all very well. Niches are good – you do things you are good at, you attract clients who need this sort of thing, you charge a premium price for a premium product, and you win more often than not, so the clients are happy. However, what happens if your niche closes down? There used to be a steady trade for people with nice round hands who wrote out deeds on parchment, and there had been for hundreds of years. Or had skill in looking after horses. Then along came the typewriter, or the motor car, and goodbye niche.
This sort of thing has been happening to litigators over the last few years. Out here in the Midlands there is an awful lot less litigation going on than there used to be before the banks tried to take us all over the cliff with them. First the market in disputes between businesses fell away, as everybody decided they just couldn’t risk the cost of fighting, then the remaining pools of Legal Aid dried up, and personal injury work isn’t what it was, with portals, protocols, and talk of fixed costs and the end of the CFA as we knew it. Litigators are scratching around.
One of the few growth areas is Contentious Probate – arguments about wills, trusts, executors, Inheritance Act claims and so on. This has the major advantage that clients only show an interest when there is a serious amount of money at stake. They only discover a liking for Great Aunt Alice once they find that she is worth the odd £100k or two. They rarely feel it worth while arguing that as a point of principle they should get a half share in her dog and its basket, unlike a lot of the other possible areas such as matrimonial law, or claims against the police, where clients ride their principles up and down all day with little regard for how the humble lawyer is to get fed. No, this looks much more promising.
And all the evidence seems to show that there are more of these arguments about. I’m not sure whether it is because times are hard and people turn to arguing with their families to make ends meet, or that it has become fashionable, like whiplashes were, or it’s a spin off from the Ilott v Mitson case which said that adult children are entitled to claim under the Inheritance Acts. But it is clear to see in the figures.
So lots of worried litigators jump on the band wagon. This new area can’t be that difficult, can it? Well here are a few unusual features that you don’t get elsewhere:
- All parties thinking they know all the other parties, but not always being right;
- Actions with 30 parties, including minors, people under disabilities, and cousin Frank in Vietnam, all of whom may need to be served;
- A chance to get a statement from the person who drafted the will under a Larke v Negus request;
- Caveats, Warnings and Appearances, dealt with in Leeds;
- Statements of Testamentary documents;
- No default judgements or summary judgements, but a chance to proceed with written evidence to proof in solemn form;
- Substantial chances of winning and not getting your costs, or losing and not having to pay any, or sometimes losing and getting the costs paid out of the estate;
- And clients who might be worth a fortune if they win, or nothing if they don’t and can’t afford to pay the cost as it goes, and who are extraordinarily difficult to get covered by ATE insurance.
Then you add counsel whose clerks assure you have done lots of this but turn out to know no more than you, and District Judges who handle 3 cases a year (or, more scarily, 3 a day) and ask whether you would like the “usual directions.” And having to administer the estate if you win.
Clients who come in looking for a windfall, and having convinced themselves that they are entitled to it, are very upset if things go wrong, and explaining that all litigation is risky, or the judge had a bad day, rarely cuts the mustard. They expect either success, or a good compromise, or early advice that they aren’t going to get anywhere and should save their efforts for the next great aunt. And in all fairness, this is what they ought to be getting. You don’t rate a dentist who embarks on extensive root-canal work when he really ought to tell you to get the thing pulled out; you feel let down.
No, clients, not unreasonably, expect you to know what you are doing. You need a private client colleague who deals with the administration, access to expert counsel for an early advice and the trials, and a detailed knowledge of the (odd) procedure and the law. You need to know the courts to go to and those to avoid like the plague. You need to cultivate specialised funding that can only come with a track-record. You need to know those of your opponents who know their onions, and those who are cabbages. And you need to pick your clients, pick your cases, and pick your fights.
Like anything else really. Don’t Dabble. Unless you want to help the swelling numbers in the next popular field – making professional negligence claims against solicitors.