A bone of contention
updated on 01 June 2010
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When you start your training contract, you will find that you need to gain experience in both contentious and non-contentious work. This is a requirement of the Solicitors Regulation Authority - the body which regulates training contracts. But what do the terms 'contentious' and 'non-contentious' really mean?
Contentious
Contentious work involves a disagreement between (at least) two parties - for example, a dispute between neighbours over their property boundary or between two businesses over the quality of the products that one has supplied to the other. Therefore, in contentious work you are always acting for one party against another. It is adversarial - the other party is commonly referred to as 'the other side'.
Non-contentious
In non-contentious work there is no dispute. There may be one party, your client, or there may be two (or more) parties. Will drafting and tax planning are examples of non-contentious work in which there is no other party. You are advising your client about the best way to structure and manage his or her affairs.
On the other hand, acting for partners in the sale of their business will involve two parties. This is non-contentious work because there is no dispute. In the event that a dispute arises, the work, or that element of it, will become contentious.
A mixture of both
Usually solicitors specialise in a specific practice area which is either contentious or non-contentious, but some handle both. A trainee in the employment team might draft a contract of employment (non-contentious), then attend a meeting with an employer which is seeking to defend a claim from an ex-employee alleging discrimination (clearly this is contentious, as the parties are at loggerheads). Some family lawyers undertake both contentious and non-contentious work. For example, drafting a cohabitation agreement is non-contentious, whereas acting in divorce proceedings is, of course, contentious.
Is all contentious work litigious?
So, contentious work is any work that involves a dispute. The work is contentious from the moment that the dispute arises until it is settled - whether this is by mediation or at trial. However, not all contentious work is litigious. A contentious matter does not become litigious until court proceedings are issued - that is when litigation begins.
What does contentious work involve?
In contentious work, the client usually instructs a solicitor because he or she is unhappy about something. Often, the client will think that something is unfair and you will have to decide whether there is a case in law. For example, your client’s partner Annabel has died and in her will she leaves him nothing. Your client thinks this is unfair and consults you to find out whether there is anything he can do about it.
Sometimes you will be instructed because your client needs to protect his position. For example, imagine that your client is Annabel's son Derek and Annabel's will leaves him everything. Derek needs to protect his position as he currently benefits under Annabel's will.
In contentious work, you will be protecting your client’s position as best you can and trying to get the best possible outcome. This might involve negotiating with the other side and you might have to be tactical. For example, in a money claim you might start by asking for a higher sum than you realistically expect the other side to agree on. Your opponent will probably start on a very low figure and you need to negotiate the figure up to a reasonable amount for your client. In most settlements, a good result is when neither side is entirely happy.
Often, clients have commercial considerations that are more important than the monetary sum. For example, your client ABZ Company wants to resolve a dispute with 123 Company without going to court, because it wants to be able to trade with 123 Company in the future. The best way forward might be for the companies to appoint an independent expert to decide on the disagreement, agreeing beforehand to accept the decision even if it is unfavourable.
Another important commercial consideration for many businesses is the need to avoid negative publicity. Your client might believe that the other side is in the wrong and you might agree, but to avoid negative publicity the client might decide to settle or even drop the case. Sometimes you have to advise your client to do nothing!
You may want to know how much court comes into all of this. Only 7% of cases reach trial. Solicitors who have been qualified for 10 years may have had only a handful of cases reach trial. However, this does not mean that a solicitor dealing with disputes has little to do with the court - far from it. Once court proceedings are issued, a long chain of procedure (known as interlocutory proceedings) is triggered which is governed by court rules and protocols. The defendant has a certain amount of time in which to file a defence, make or accept an offer to settle, obtain expert evidence, and draft and exchange witness statements - all with case-specific deadlines. The parties may be ordered to disclose to each other all the evidence they have in relation to the case and so on. This ends in trial only if the parties fail to reach an agreement.
Differences between types of contentious work
Contentious work is very diverse. Most family lawyers attend court a lot, whereas commercial litigators rarely do. A commercial litigation trainee might not attend court at all. On the other hand, a trainee in the family department will probably be in court several times a week. Personal injury lawyers tend to specialise in either claimant or defendant work, whereas other contentious lawyers will frequently act for parties bringing claims, as well as those defending them.
Differences between types of non-contentious work
With non-contentious as with contentious work, you are trying to get the best possible outcome for your client. Non-contentious work also covers a range of practice areas. It might involve advising your client on how to arrange his affairs in order to reduce the tax liability of his business. You may be drafting a will for your client or a tenancy agreement for a property that your client is letting. It might involve completing the sale of a business.
Non-contentious lawyers help to reduce the risk of disputes occurring by careful consideration of the legal and practical issues. This may be why your client has consulted you for advice. You might advise your client on the legal effect of a contract he is entering into, or negotiate with the other party for the terms to be more favourable.
You might find that you have to compromise on the drafting of the particular clauses of an agreement for commercial reasons. Perhaps your client is desperate to enter into a contract because it needs to get hold of particular goods which are a component of a product it manufactures and it has only two days' worth of stock left. It is your job to get the deal done so that business can continue. As a trainee assisting with cases like this, you will see how matters develop and are negotiated or compromised for commercial reasons. You will also learn to work well under time pressure.
Some non-contentious work is transactional and concerned with getting a deal done. It might involve acting in the purchase of a business where you have to fully investigate the business and report to your client before you can complete the deal. You might be working with other solicitors representing another party. These solicitors will, of course, be acting for their own clients and aiming to get the best possible outcome for them.
Myths
It is true that contentious work can be time pressured when solicitors are working to tight court or commercial deadlines. This can be demanding and even stressful, but it is often what contentious lawyers thrive on.
Non-contentious work can be equally demanding and time pressured. Perhaps you are working towards a tight completion date to sell a company or your client is dying in hospital and you need to undertake some immediate ‘death bed’ tax planning.
Another myth is that litigators are aggressive people who enjoy an argument. Some are, but many are not. In fact, some reserved and quiet people - even those who would do everything they can to avoid an argument in their personal lives - make good contentious solicitors.
Skills
Both contentious and non-contentious solicitors require strong intellect and interpersonal skills. Some contentious solicitors need to be good advocates. Yet many will rarely, if ever, need to present in court, as barristers are usually instructed. So if you dislike presenting to others, contentious work could still be for you. If you like presenting, you may choose to become a solicitor advocate in due course.
Contentious solicitors need to be good negotiators so that they can get the best possible outcome for their clients. Non-contentious solicitors may also need strong negotiation skills - for example, to negotiate a deal or the terms of a contract.
As a trainee, the experience and skills that you gain in a non-contentious seat will be invaluable when you do a contentious seat and vice versa. When you have seen a solicitor's drafting picked apart by the other side - or even worse, in court - it will encourage you to do it better. If you have drafted documents and experienced the commercial pressures to get deals done, you will understand why imperfect drafting occurs.
In conclusion, you may not really like civil litigation during the LPC, but that does not mean that you will not enjoy it in practice. You may be convinced that you will be a contentious lawyer, as you are always up for an argument, but then find that helping to complete property deals is what gives you a buzz. Be open-minded and flexible about the direction of your legal career. You might even be surprised about what you enjoy.
Anna Heywood is a trainee solicitor at Michelmores LLP.
