This post aggregates hyperlinks to a series of articles published by an English firm, Wragge & Co, entitled ‘Litigation Survival Guide’. It piqued my interest for the reasons set out below. Part 1 is ‘Escape to Victory — Points to Consider When Terminating a Contract’. Part 2 is ‘Protecting the Supply Chain’. Part 3 is ‘Retention of Title: Sellers Beware’. Part 4 is ‘Winding Up Your Corporate Debtor’. Part 5 is ‘Responding to the Threat of Winding Up’. Part 6 is ‘Regulatory Breaches’. Part 7 is ‘Think Before you Claim’. Why it’s not part 1 I cannot imagine. Part 8 is ‘Cost Effective Litigation’. Part 9 is ‘Privilege — top five Q&As’. Part 10 is ‘A Reminder of the Basic Principles of the “Without Prejudice” Rule and Some Hints and Tips for its Use’. Writing about litigation usually amounts to annotations of the rules of court. But the rules these days are nearly irrelevant in many cases, notably those which are judge managed by directions. I am not at all sure that judge-managed litigation as it presently stands is good. There are many different kinds of cases, and they demand many different paths to trial. The courts publish standard sets of orders, and solicitors somewhat unthinkingly fill in the gaps, agreeing to steps which are unnecessary and abdicating responsibility for creativity. The art of litigation is missing.
The Art of Litigation would be a welcome addition to the literature. So too would quality management systems within firms which seek to set out all the considerations which an operator should take into account at any step in proceedings. Such a document is desperately needed in relation to the step of filing an appearance. The job of the appearance draftsman is like that of an anaesthetist — hours of boredem punctuated by moments of terror. You have to know the rules when filing an appearance for a partnership, and you have to know when to file a conditional appearance. So too directions hearings, always attended by young lawyers who have no idea what they’re doing (as exemplified by the awkward silence between the articled clerk who stood up when her case was called, followed by a ‘Yes, Miss Gilligoogle’, followed by “Hi!”). A quality management system of the kind I have in mind would provide detailed guidance in relation to the very important question frequently not understood by directions hearing advocates: affidavits or outlines of evidence?
Problem is, it would be a parochial text, because the devil is in the detail of the courts’ procedures and practices, and they differ markedly from place to place and forum to forum. Anyway, Wragge & Co’s series of articles entitled ‘Litigation Survival Guide’ caught my eye as a start on the road to The Art of Litigation.