Litigation: A bit like the Tour de France

Litigation: A bit like the Tour de France

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Author: Kath Livingston

Many of us have been avid watchers of this year's Tour de France, and it got us to thinking that this epic race is a little bit like litigation.

A winning team working together

First, there's the critical matter of assembling a winning team. No use having a professional cycling team made up of only sprinters or climbers - you need both alongside an entire back-office team. Within any litigation trial team, the choice of solicitors, counsel, experts, witnesses and client representatives is key.

You need the right mix of legal expertise: factual knowledge and advocacy, strategic, written/oral communication, analytical and logistics skills. And of course the whole team must be committed and tenacious, with a hawk eye for detail.

The Tour also demonstrates the importance of a team working together to bring home the desired prize - for Team Sky this year, the elusive maillot jaune - yellow jersey. Whilst one man appears to take glory on the podium it is in some ways illusory, since it is acknowledged that success is down to team effort - just like litigation. It takes a team to win a trial.

Strategy is key

Goal setting and strategic direction is vital. Within the Tour it is understood that it is not realistic to set out to achieve everything - yellow, green and polka dot jerseys. Often the available outcomes are mutually incompatible. Just like litigation.

You might have more than one cause of action or head of loss. You need to assess the strengths and weaknesses of each and decide where to direct the strategy and where to deploy resources. You fight your best case, which can mean parking your weakest points. Or your choice might be between having your day in court and early settlement.

Of course, all team members need to buy into the agreed strategy, and at the client end that means buy-in both from the client representatives on the team and from the wider business.

Dissenting views at the outset are fine to provoke debate and test theories, but when it comes to the fight the strongest team is one with everyone on board with the agreed strategy and all pursuing a common goal.

Battles along the way

Litigation is an adversarial process, involving mini-battles - contested interim applications - along the way to trial. Professional cycling teams decide which battles - stages - to fight, and which to concede, depending on their goal, be it yellow jersey, king of the mountains, sprint stage wins or overall stage wins. Litigation should be the same. There is no sense in vigorously contesting every single point or application, unless there is a good strategic reason to do so - a potential critical impact on ability to win at trial.

Similarly, good litigation teams, like good cyclists, know when to attack and when to close down an attack or let it play out. The Civil Procedure Rules provide many tools with which to attack to gain a strategic advantage - from summary judgments and strike outs, to disclosure applications and applications for costs. These can be valuable in exerting pressure, handing out a bloody nose, and in enhancing your position.

But there is little to be gained by a cyclist launching an aggressive attack on a mountain stage if he just does not have the legs to sustain it. And the same is true of litigation if you just do not have the evidence.

At best, it can lead to an embarrassing climb down and wasted costs. At worst, you can face a hefty adverse costs order and an angry judge. So a good litigation team will carefully pick and choose its battles. And a good team also knows when to keep a low profile - to stay in the peloton - to watch how a case develops or perhaps wait for mistakes by its opponent.

Position to win

Then there is positioning to win. A case will have its merits, according to the facts and the law. But a lot can be done to enhance the case, to increase the prospects of winning, through careful and clever positioning: in correspondence, in statements of case, in witness statements, through strategic offers and admissions, and always by ensuring greater attention to detail than the opponent.

We liken this to 'marginal gains'. Sir Dave Brailsford, performance director of British cycling, is famed for his marginal gains approach, which has led to remarkable achievements by UK cyclists in recent years.

It is all about making many small changes across all aspects of racing, from nutrition, to training, to kit. Translated across to litigation, it is all about small improvements and finessing at all stages to make those marginal gains and enhance positioning.

A matter of etiquette

Steeped in 100 years' of history and tradition, there is a Tour etiquette. The same is true of litigation and the court process - equally steeped in history and tradition.

At times within the Tour, there are unspoken codes of conduct in play: you collectively back-off to take on nutrition; do not attack on the way in to Paris on the final stage. While we are not suggesting the equivalent - that a litigation team should take its feet off the pedals in the run up to the litigation equivalent of the Champs-Elysees - the trial, there is still cause for gentlemanly conduct. A good litigation team is not uncooperative or awkward for the sake of it.

A good team does not forget that the CPR requires reasonable conduct, that good manners and constructive cooperation cost nothing, but can in fact save a lot of money, and that what goes around - in terms of conduct - comes around.