Taking the adversarial system to task with vigour and courage, Phil Factor gives us his view on how to handle the trials of litigation if all cannot be solved by a hearty pub lunch.

The Adversarial system

I was once taught the correct way to halt the attack of a charging bull terrier. Stage one is to show no fear; to stare straight into its eyes and dare it to proceed. If that doesn’t do the trick, then in stage two you grab its lower jaw so it cannot bite, and roll it on its back. I once had cause to put this technique into practice and I can vouch for its efficacy.

It is a useful life-skill and a technique that can just as easily be applied to your dealings with lawyers. In my dealings with the legal profession, I have never had to proceed to stage two, though I am yearning to give it a try and am confident that it would be effective. It helps, with both dogs and lawyers, to handle them regularly and to engage in play fights so that you do not experience fear.

In my IT career, I have had several involvements in litigation, usually on the receiving end. If I’ve learned one thing, it’s that that there is a yawning gap between law and justice. My advice to anyone thinking of engaging in litigation is simple: don’t. Unfortunately, however, frustration and anger can sometimes override commonsense. In the grip of adrenaline, the litigant can easily convince himself that, in his trusty lawyer, he has found an instrument of sweet and righteous revenge. In fact, all he has found is a highly effective drain on his bank account.

Some time ago, I wrote a very fine commercial communications package. It was for the secure encrypted communications of corporate data via X25. It included a special PCI card with a slave processor for managing the actual nuts and bolts of the rather complex synchronous serial communications, and a PC application for sending stuff and setting the various parameters. It worked very well and I was enormously proud of it.

Then the company I wrote it for went bust, and the trouble started.

Some of the staff of the late-departed company took the source code and the design of the PCI card, started up a new company and began to market and sell my application under a new name. This probably wouldn’t have mattered much, had it not been for the fact that a third company bought up the assets of the dead company, including the designs and code that I’d written, and then engaged me to develop the product.

Very soon, there were two virtually identical products on the market. The new owner was understandably aggrieved, especially after I obtained a copy of their product, disassembled it, and was able to prove that it was identical to mine. It looked like an open-and-shut case and so off we went, full of confidence, to the solicitor’s office, armed with a file of documents. He smiled brightly, took our instructions, and briefed a leading London barrister.

After a while, we were summoned to the barrister’s chambers, in Lincoln’s Inn. It was like a mediaeval cloister of Oxford College. The barrister was articulate and affable, just as anyone would be on his hourly rate. We went through the evidence, and he absorbed the technical intricacies as though he had been programming X25 all his life.

‘Oh yes’, he admitted once we’d finished, ‘you have a case, a good case. But…’ he paused for a few seconds, thereby adding a few more pounds to his charges.

‘But what?’

‘We could ask for an injunction to stop them selling the package… ‘

‘Yes, yes, ‘ we agreed eagerly.

‘…but the problem with that is that you might lose the subsequent court case, and the other company would have unfairly lost all that business; it would have suffered loss as a result of the injunction, for which you would then be liable.’

‘But we won’t lose!’ we protested.

‘I’m just telling you the system’, he explained. ‘There have to be checks in place to prevent malicious and unreasonable injunctions being requested. If you ask for a preliminary injunction to stop them using your product then, as a security, the Court will require you to deposit a sum of money equivalent to the amount of their subsequent losses, just in case the action goes against you. The other party is not going to underestimate their losses are they? They will suffer enormous financial hardship, and might even go into liquidation. I suspect that they will ask for around a million pounds. That is money you have to find before you are awarded an injunction.’

‘But it is an open or shut case. Surely, it is unfair to assume we are going to lose?’

He looked sheepish, ‘Oh dear. The legal system tends to decide fairly, of course. But then, a court action is always a gamble. Even the best case can go against you.’

We looked at each other, hurriedly shook his hands and left the chambers. Somehow the idea of gambling a million pounds didn’t seem such a good idea.

We have an adversarial legal system. That means something like trial by combat. It is a slight advance on dipping the plaintiff and defendant in the river to see which one floats the longest, but not by a large margin. It is more like hiring a mediaeval knight to bash it out with an adversary hired by the other side. If your knight is not on top form, or has neglected his sword training skills, then you will lose, however just your cause.

Our only option was to curse the wretched company that stole our property, and shake our fists at them. This proved agreeably effective, because within a year they took their company and their unfortunate investor’s money across the river Styx, and this time the liquidation was final.

As I write this, I am locked in a legal dispute with a large government organisation. The details don’t matter beyond the fact that (of course) I am entirely in the right. However, any legal battle would be like entering a bleeding competition with a blood bank. Legal victory generally goes to the party with the deepest pockets. Legal Aid used to be a wonderful instrument in allowing a small minority lucky enough to get it to win actions against those who didn’t. Nowadays, however, the only mediaeval knight you can hire with legal aid is desperate, slow-witted or suffering mental hernias. For the rest of us, guerrilla warfare is the only possible response.

Once, an IT company was foolish enough to attempt litigation with me over a dispute about a contract. It could all have been settled over a beer in the pub, but tempers flared and they attempted a court claim. I put in a counter claim and we settled down to trench warfare. The only difference was that they hired an excellent but costly solicitor, and I settled down contentedly with a pile of legal textbooks.

I started to send in a steady stream of questions, clarifications, requests for discovery of documents, and so on. This delighted the solicitor, as every request had to be acted on, and each letter he sent out in response meant another charge to his client. We soon became good friends on first-name terms.

At one point, I got a bad bout of flu and was out of action for a few weeks. He anxiously contacted me, and even gave me a few tips on the sort of questions I should be asking, or points that should be clarified. After a while, the initial passions cooled, and any court action was still months or years away. Meanwhile, their bills mounted steadily and alarmingly. They began to put out peace feelers, which I ignored.

Then, out-of-the-blue, another company expressed an interest in taking them over. Of course, nobody is interested in purchasing, or investing in, a company that has court proceedings against them, or who are engaged in litigation. It is an unquantifiable. They looked through the file, saw the legal expenses, and told the company that they had to settle before any deal could be reached. Their solicitor was delighted and leaked the information to me.

It is a rare but delightful experience to sit around a table, smiling affably at people who are grinding their teeth with bottled-up anger, at being forced to offer me a substantial sum of money to settle a claim.

The whole experience did, however, convince me that in the world of commerce, litigation is just a means of feeding lawyers. And they are always hungry. Negotiation is the answer. Much can be achieved at a pub lunch; and if that fails, then a vile, blood-curling, curse can, in my experience, be most effective.