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‘For clients litigation is just another business deal’

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By David Pliener on

Ahead of Commercial Awareness Question Time — which you can apply to attend here — Hardwicke’s David Pliener considers commercial awareness from a barrister’s perspective


There isn’t an obvious correlation between people who go into commercial law and people who have commercial sense.

Actually lawyers tend to choose this area because it features lots of interesting legal disputes and, let’s be honest about it, because it is better paid than some lines of work.

My job is about problem solving and it’s very practical. Typically it involves representing a party in a dispute with another business. Naturally there is law involved — indeed, as a barrister this is one of the areas where we add value as we tend to have more time available to keep on top of the latest case law than a solicitor, more of whose time is spent dealing directly with the client and meeting their needs.

But you have to understand that for clients litigation is just another business deal, albeit with a risk attached to it. If you don’t realise that, as you are presented with your interesting legal problem, then you are not speaking the same language as the organisation you are representing.

For example, during the recent case of Accolade Wines v Volkerfitzpatrick — a dispute about the state of the floor in the largest warehouse in Europe, which is used for the storage of wines — we had to constantly keep in mind that, amid all the complexities arising from a case involving multiple parties, the litigation was only one piece of the puzzle. In part it was there to leverage the client the best deal.

Ultimately, the needs of a parallel negotiation that was being run by the law firm on the case, RPC, would trump what we were doing if they could get a deal, and sometimes the needs of the deal, or of the commercial realities, will outweigh the needs of the litigation.

A lot of the advice given by commercial barristers comes down to judgement. How will this play in court? How will the judge perceive this? You are always drawing on your previous experience. The problem faced by younger barristers is they don’t have that experience, so they are used in a different way — either as juniors on bigger cases or as advocates on smaller cases. Sometimes they cut their teeth in totally different areas of law, before gradually moving towards commercial work both by chance and because they find it suits them.

That was my route. I fell into commercial law. At university I had been involved in student activism, which left me with a taste for advocacy — and criminal law. But after the generalist set I joined as a pupil dropped its crime practice I ended up doing professional negligence and personal injury. Having not been taken on there, I got a place at George Carman QC’s old set, New Court Chambers, which at the time was doing a lot of land law — so that’s what I did, until the set folded. At which point I joined Hardwicke, where I did more and more commercial law, and over time developed specialisms in insurance and construction.

When we are recruiting pupils, we try to keep in mind that students don’t always know exactly where they will end up. We are constantly trying to judge what someone will be like in a few years’ time. And while we expect candidates to understand commercial world basics — such as balance sheets, shares and profit and loss accounts — I suspect we are a bit susceptible to wild cards.

It’s important to keep the faith as a student and young barrister. Certainly for me there were times when I considered what I might do if I didn’t make it, and I remember looking at political lobbying and management consultancy as alternative careers. Now, having managed to stick around, a human rights barrister friend of mine enjoys teasing me about the very dull nature of my work in comparison to his sexy caseload. But I wouldn’t change what I do. If there is one thing I’ve learned from it all, it’s to follow the work.

David Pliener is a construction and insurance barrister at Hardwicke. He will be speaking on Wednesday at a litigation-themed Commercial Awareness Questions Time, with Hardwicke and RPC.