Every business needs a barrister… sometimes
When a business becomes involved in “major litigation” it is betting the company on the skill of its attorneys. Business litigation was originally meant to bring commercial controversy to a summary conclusion and resolve disputes so that the parties could go forward and pursue their principle line of business. Now, it seems, the purpose of business litigation is the care and feeding of large time-billing law firms.
Barristers and Solicitors
The division of the legal profession into two classes—barristers and solicitors—is unique to England and some of its Commonwealth nations, but it should serve as a model for providing legal services to business enterprises in the United States.
Barristers are advocates and trial lawyers who argue matters before judges, magistrates and arbitrators and conduct trials before juries. They manage litigation. In England, barristers are not supposed to accept work directly from a client. A barrister must be “instructed” by a solicitor.
A Barrister is, of necessity, a “Solo” Practitioner—a true professional—who serves only a single client at a time. Barristers are free of the many inadvertant conflicts of interest existing in many large law firms which depend on “Chinese Walls” to separate their efforts on behalf of clients that might have adverse interests.
Who should conduct litigation?
Just how many cases should a seasoned litigator handle at any given time. English custom restricting barristers to one case at a time may be a bit extreme, but there is a limit to the number of lawsuits that any attorney should be permitted to manage at any given time. No attorney should be permitted to promote delay or continuance of an action involving one client in order to accommodate the litigation demands of another or even more reprehensible, enhance the “leveraging” of associates and non-equity partners.
The American Barrister
Barristers are like the pilots of modern high performance jet fighters. They fly the plane, aim and fire the weapons, and exercise command judgment during combat. The litigation manager that supports a modern American barrister is like the weapons systems officer, the GIB (guy-in-back) of a military jet who is responsible for maintaining the weapons systems and operating the electronic countermeasures during combat. Together they are an indivisible fighting team.
Pilot, weapons systems manager, and aircraft form a complex bionic organism uniquely adapted to their mission—mortal aerial combat.
To American business and industry, litigation has taken on the aspects of all out war. Litigation is the civilized alternative to war and bloody revolution; the principle alternative to armed conflict now available to civilization. The barrister and litigation manager represent the most efficient and effective litigation weapon system available to an embattled CEO and their Company.
Barristers identify issues, create arguments in support of one side of that issue; “sell” those arguments to the jury, court, arbitrator or mediator; and during settlement negotiations, the adverse party! This is no small feat, which is why advocacy, both oral and written, has long been considered an art form.
The ability to present the case for a client and persuade the decision makers to agree requires talent and skills honed by experience and practice. The talent is rarely identified at even the “best” law schools and almost never developed in the academic environment.
Yet, despite their tremendous importance, litigation skills have become undervalued by American business
By the time business litigation is contemplated, a dispute has already arisen and immediately associating a barrister “of counsel” can be valuable in avoiding the courtroom. Retaining your barrister to identify the issues in a dispute which may lead to litigation and making the Company ready for litigation over those issues before it starts usually avoids longer and more costly efforts later. Indeed, the economic reality of practicing as a Barrister leads them to terminate their engagement as soon as possible by obtaining the most advantageous settlement for their client in the shortest possible time.
Retaining a Barrister and establishing at the outset of any business controversy that you are ready, willing and able to resolve the dispute in a courtroom if a reasonable settlement cannot be reached is beneficial in its own right.
Personal injury lawyers are often valued just on their ability to convince judges and juries to either award or not award large sums of money. Inexplicably, those same skills are deemed less important in the context of business disputes.
The skills of a Barrister should be held in high esteem and recognized as the unique legal specialists they are.