‘Our job as litigators is to create risk for the other side’

Ahead of tomorrow’s ‘Commercial Awareness Question Time’, RPC partner Simon Hart considers the skills needed to resolve City disputes

Rolls-Building

Even after all these years, I still love receiving a new case.

As a commercial litigator, you spend your life being dropped into the heart of different businesses. You see how everything works, and what the various dynamics are. Often the people you are advising are at their most pressured, and you are able to help them.

I’ve represented shipping magnates, large companies, institutional clients and individuals — on all sorts of cases. The fraud ones tend to be the most memorable. Certainly, dispute resolution is a great way to develop your understanding of the world

It’s fair to say that my commercial awareness has come on hugely since I was starting out as a trainee. Unfortunately there is no substitute for simply seeing and doing. It’s only by sitting in meetings with clients, and thinking about why they take certain decisions, that you really understand their businesses.

What we look for in students, then, is more a demonstration of enthusiasm for working in the commercial world than anything else. Although, frankly, as a student and then trainee I didn’t have a huge amount of commercial experience, but I definitely had that passion, having studied history and economics and developed a genuine interest in the City.

Nowadays, I think the internet — which didn’t exist in its current form when I was coming through — can help students enormously. It’s not the complete answer but there is so much great stuff out there, with law firms producing their own blogs about topical business issues, and a plethora of information coming at you through Twitter and LinkedIn, if you use it the right way. My most recent discovery is the McKinsey Insights app.

The challenge is to use your understanding of the bigger commercial picture to help your clients. I often tell associates that our job, as litigators, is to create risk for the other side. The more risk your opponent faces, the quicker the dispute crystallises and the higher the chances of entering into a commercial negotiation. That’s where you want to be, because few clients want disputes to escalate into a full blown trial without at least trying a commercial discussion.

In getting to this point, you always need to be thinking about what the court would expect at a contested hearing — even when what you are dealing with is unlikely to make it to that stage. This added dimension is a consideration that doesn’t tend to exist for transactional lawyers. So you need to be constantly balancing issues like costs budgets — which judges have become very focused on in recent years — with the client’s wider objectives.

In this sense, our role as solicitors is very different to the barristers we work with. On larger cases, part of the solicitors’ role can be legal project management, and liaising very closely with the clients. The barristers are likely to be concerned much more with the purely legal aspects of the case, advocacy and court strategy.

However, the best barristers are very commercially aware. That’s important, because a big part of being successful as a legal team is alignment of all the members around the client’s commercial objectives.

Whether you are a barrister or solicitor, you are dealing with disputes that arise out of the real world, not scenarios from a text book. Young lawyers need to keep this in mind. One of the mistakes junior lawyers can make is to deliver fantastic, gold-plated academic pieces of research, extending over tens of pages, in disputes that don’t warrant such an approach. That’s where senior lawyers have a responsibility to put tasks in context at the outset. Again, it’s about keeping sight of the client’s overall agenda. That requires an understanding of people as well as business.

It is individuals, after all, that make businesses tick. As a solicitor a new client may come into your professional life who you sometimes speak to every other day for two or three years. Then, when it’s all over, they can disappear into the sunset and you start again with somebody else.

Simon Hart is a partner specialising in banking disputes, financial markets litigation and regulatory investigations. He is RPC’s graduate recruitment partner. Simon will be speaking at ‘Commercial Awareness Question Time — with Hardwicke and RPC’ on Wednesday 9 March. You can apply for one of the last few places to attend here.

Previously:

Commercial awareness — the barrister’s view [Legal Cheek Careers]