Litigation

In a nutshell

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Litigation attorneys help their clients resolve disputes. If disputes are not settled by negotiation, they will be concluded either by court litigation or by an alternative form of dispute resolution, such as arbitration or mediation, both of which are potentially more expeditious, less costly and out of public view.

Disputes may concern anything from unpaid bills or unfulfilled contract terms to problems between landlords and tenants, infringement of IP rights, construction-related claims, the liabilities of insurers, shipping cases, defective products and entertainment industry wrangles… the list is endless. Since the recession, many general litigators have become increasingly involved in conflicts arising out of securities, white-collar crime and bankruptcy scenarios.

Some litigators will concentrate on specific types of claims, making use of particular industry knowledge; others will remain generalists, applying their legal experiences – especially trial experience – to all manner of cases and clients. Some will focus on appellate matters, and there is a separate explanation of this type under Appellate Law.

What litigators do

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  • Advise clients on whether they have a valid claim, or whether to settle or fight a claim made against them.
  • Draft pleadings; for example if acting for a defendant, a litigator will prepare a motion to dismiss or an answer.
  • Assuming that the case goes beyond the pleading stage, litigators will ordinarily proceed to the discovery phase, where each side serves discovery requests on the other in order to gain access to evidence that is relevant to the case.
  • There is a vast amount of document review, during which litigators attempt to find the 'smoking gun' that will win the case – for example, an e-mail that indicates strong evidence of a conspiracy. While initial document review is often outsourced to contract attorneys, litigators at all levels of seniority need to have excellent knowledge of the key documents in a case.
  • Draft evidentiary objections. This involves constructing arguments on the admissibility of evidence that may be prejudicial, or beneficial, to either side.
  • Represent clients at pretrial hearings.
  • Prepare and conduct depositions.
  • Senior litigators, normally at partner level, are responsible for the way the case is presented and conduct the trial itself, deciding which arguments will resonate with jurors and undertaking witness cross-examination and closing arguments.

Realities of the job

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  • Everything is driven by procedural rules and the timetable of the courts. Good litigators understand how best to maneuver within the system, while also developing case-winning strategies.
  • As litigators need to abide by tight deadlines, the nature of the work is often cyclical: litigators may not have a great deal of work or pressure following a hearing or trial, but may work phenomenal hours in stressful conditions when a deadline approaches. Of course, the number of cases a litigator handles will affect the time pressures imposed by deadlines.
  • The sheer volume of paperwork generated – in commercial cases it can easily run into millions of pages – means that junior attorneys spend much of their time sifting through documents, scheduling, copying and disclosing them to the other side, where appropriate. It’s not always the most fascinating work, though it is critical to the outcome of the case and finding the smoking gun can be extremely exciting.
  • Juniors do also perform written work, like first drafts of pleadings, and the preparation of questions to be asked, and sometimes conduct depositions.
  • Litigators need to express themselves succinctly and precisely in all their communications.
  • Frontline participation in full-blown trial advocacy generally isn’t something that litigators experience until later in their careers, although there are some litigation-led or litigation-only firms that blood attorneys much sooner.
  • The overwhelming majority of cases will settle before reaching trial.

Current Issues

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  • The economic downturn has generated additional litigation, as clients have increasingly litigated disputes to recoup financial losses. Significant events, such as the collapse of Lehman Brothers and the Bernie Madoff scandal, continue to have wide-ranging consequences. A rise in investigations, and increased regulatory action and litigation, are among the most obvious of these.
  • Not all firms have been able to take advantage of the boom in high-end financial litigation. Many large full-service firms are hamstrung by conflicts of interest, unable to litigate against the banks they represent in other capacities.
  • The cost of commercial litigation is increasing. In particular, there is the vast cost of electronic discovery, as both sides seek the smoking gun. In the 1970s, between one and two million documents would be considered an enormous quantity; today, cases can involve in excess of five million, which in turn means that document review alone can cost millions of dollars. A number of practitioners believe there is a need for greater limitation of these costs.
  • Third-party litigation funding is an increasing phenomenon. Hedge funds or private equity groups choose to bankroll the cost of others’ litigation for a share of the winnings.

What top litigators say

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Susan Saltzstein, partner, Skadden, Arps, Slate, Meagher & Flom “There’s no one-size-fits-all approach to litigation. As a general litigator, you’re exposed to different business models, and there are unique issues in each lawsuit. Lawyers ought to avoid treating and defending one case the way they did another."

“You may find yourself litigating topical subjects, and litigation often reflects newsworthy events.”

“You cannot defend a case without hard work. You have to be willing to immerse yourself in the facts and the law. Immersion in the legal theories and factual nuances allows counsel to be predictive rather than reactive."

Jonathan Lerner, of counsel, Skadden, Arps, Slate, Meagher & Flom 

“If it’s going to jury trial, you have jury simulations. You don’t go to trial in a big case without having some testing of which key points resonate with potential jurors.”

“As complicated as cases start out, usually, by the time you’re ready for trial, the case will turn on ten or 12 documents.”

“I would liken a litigator to a professional athlete who goes into the titanic clashes on the playing field.”