Friday, 31 October 2008

Get yourself a good lawyer

Time for a serious post.

I am helping in a piece of trade mark litigation at the moment, which I will not identify for obvious reasons. Suffice to say that my client's mark is registered, has been for decades, has been in continuous use for all that time and is well known in the trade concerned. The other party is using an identical trade mark on identical goods. Ask any trade mark professional; intellectual property disputes don't get much more clear-cut than this one.

Anyway, the usual has happened; the infringer stuck his head in the sand and hoped we'd go away. We didn't; we trotted down the Strand and brought proceedings. So he went off to get himself a good lawyer.

Now, I don't know how the conversations with the lawyers he sounded out went, and nor should I. All I do know is that a defence and counterclaim was filed that contained a number of different grounds on which it was asserted that our client's claim should fail. These each fell into one of two different categories; (a) hopeless, and (b) untruthful. We have spent the time since then picking them off one by one, and should (all being well) get judgement in a month or so. Meanwhile, the infringer's firm has been placed in liquidation with large debts to its trade creditors. Whether the legal bills pushed him over the edge into liquidation is a matter for speculation; the debts of the company are substantially more than the legal costs involved, so I surmise that we were not the principal cause.

What his lawyers have done is to take £10-15k off him in return for making our life more difficult and delaying judgement by perhaps 5 months. The result of this is that the costs bill which will land on his (personal) lap will be £20k instead of £5k.

Now, if he or his lawyers had responded to our repeated offers of settlement, and used some of that £10-k to compensate my client, all of this would have gone away and he would have been at least £15k better off at the end. But that would not have benefited his lawyers to the same degree, the same lawyers who advised him on whether there were any good defences to the action.

This is not the first time that I have seen this. What is worse, those with experience in IP law know which firms are most prone to it; they know, when they see a defence being served under cover of certain letterheads, that the case is about to get more irritating. Note: not more difficult, but more irritating. What I think is going on is that the client will go round the local lawyers seeking advice; maybe 9 will say "No hope, try to settle it" but the tenth will say "No worries, there are plenty of defences you can bring". Then, to the lay client, the tenth sounds like a good lawyer who can think laterally and use the law to the client's advantage. The other 9 sound uninspiring and lazy.

This arises from the concept that we have developed of "A Good Lawyer" as someone who can, for a fee, get you off anything. There is a belief that the law is so complex and (basically) unfair that it is capable of manipulation by the right hands to achieve any desired result. The belief is that litigation is (essentially) won by force of arms and that the most expensive lawyer will win.

This is simply not true. I agree that at the margins, there are legal issues which are complex. I also agree that a good lawyer is a valuable asset. I especially agree that a competent lawyer will run rings round an incompetent one. But if you go into litigation believing only in your lawyer, not in the merits of your case, then prepare to lose your shirt.

Especially if I'm on the other side ;-)


  1. Isn't this scenario precisely that targeted by the Woolf reforms? Also, don't solicitors have some sort of duty to mitigate their costs rather than persuade the client to push on with a hopeless action?

    There is a big German firm of solicitors who make outrageous assertions in their initial approach letters. I was involved in a case where we swatted their big boy client off like a fly. It was very satisfying.

  2. Yes - the main aim of Woolf was to get litigants to focus the issues and avoid wasting costs on trivia like this.

    All it has achieved is a greater degree of cleverness on the part of the solicitors. For example, the defences can all be drafted so as to involve some form of factual enquiry, so a strike-out application is doomed as (they would say) the matter needs investigation at trial. So on it rolls ... with them safe in the knowledge that many claimants cannot afford a trial and therefore will settle.

    Woolf's threat of swinging costs orders at trial if the line of defence proves to be hopeless therefore only falls on the small defendant who tries to stand up for what he (mistakenly) thinks is right.

    As for solicitors and their duties, this is the most basic professional duty - to put their client's best interests before their own. Sadly, in the larger firms the pressure of billable hours targets becomes the main concern, and the client's interests a poor second.

  3. " the lay client, the tenth sounds like a good lawyer who can think laterally and use the law to the client's advantage. The other 9 sound uninspiring and lazy."

    It's the typical (modern) British 'something for nothing' atttude.

    Not 'am I in the right?' but 'can I get something out of this?'...

    And least we're not yet as bad as the US, where the infamous Judge Vs The Drycleaner litigation is STILL rumbling on, as I read to my surprise last week...

  4. Absolutely, Julia. The modern irregular verb:

    I got my rights.
    You have responsibilities.
    He/she/it has to pay for the whole shebang... (etc)

    And lawyers are there to make everthing the way I want it to be; if they can't, that's their fault...