Wasn’t it fantastic to see the London Marathon back on our screens, and happening in real life, yesterday? That music! Back in 2014 I had the privilege of running this epic race and I wrote about it afterwards – I find the parallels between my life as a Shoosmiths litigator and my life outside work fascinating. Here’s a rehash of those musings for 2021.
The right pace at the right time – endurance or sprint?
The marathon is a gruelling 26.2 mile endurance challenge. Successful runners don’t simply cross the start line and hope for the best; or set off hell for leather. To run this race requires a solid base of preparation and training, a tapering period to be race ready, strategic goals before and as the race unfolds, and accurate pacing.
There are parallels with litigation. First, preparation is key: take advice, gather evidence, stress test the merits, speak to witnesses – no unwelcome surprises...
In some cases, there may be scope for a sprint to the line, for an injunction or the quick finish of a summary judgment or strike out. In the right case, you can achieve or position for an early finish with an explosive sprint. But sprinting is high risk if you don’t have the legs for it (legal merits and evidence). When deployed incorrectly, you can face an own goal and an adverse costs order.
And so there’s often the need to sit on the shoulder of an opponent and play the endurance game. The litigation marathon. Yes, the case might – perhaps will – settle at mile 4, 8 or 17, allowing a strategic early exit. But it might not. And so before crossing the start line you should consider whether you have the stamina and financial means to stay the distance if you have to. The full 26.2 miles.
Choices and adaptability
Runners often speak of adaptability and making the right choices as a race unfolds. By listening to their body, their legs, and by observing the conditions around them, they make calculated decisions whether to push out or settle back. At its heart, every litigation case is built on facts, the law and evidence. Good positioning and strategic thinking then enhance the prospects of success. But as with any endurance race, litigation cases evolve and circumstances change as time goes by. Possibilities include new evidence, an unforeseen step by an opponent, an unexpected Court decision, a change to the cost benefit analysis or new commercial dynamics. Constant monitoring, re-evaluation and adaptation is a must.
A cool head
A marathon is as much a mental challenge as it is physical. Perhaps more so. A cool head is equally needed when running a litigation case to trial. Cool head equals careful, considered decisions. Cool heads stay one step ahead. Hot headedness – the opposite.
Attention to detail
How many runners did you see on Sunday studying their watches? The runner will obsess on what seems like the tiniest of details. The exact time to the second to each mile marker. How many lost or gained. Pace being achieved, against plan. The right shoes, vest, brand of gel etc. When it comes to attention to detail in litigation, two words: absolutely critical. Cases can be won or lost on the tiniest of details. An email, a sentence, a word. The lawyer able to extract those details amid the sea of facts and evidence is the one you want with you on the start line.
The runner may be the one on the road, but for every runner, pro or beginner, there is some element of back-office team whose support is vital to bring him/her home in the best possible time.
For the runner, that means coaches, nutritionists, physios, or long suffering spouses. In litigation, it’s solicitors, their administrative support, counsel and experts. Take the time to make the right choices. You are looking for that perfect blend of legal/expert credentials and reputation, a proven track record, commerciality, resources, persuasive advocacy, crisp written and oral communication skills, tactical brilliance, and sound analytical, forensic and logistics skills.
As with most things in life, litigation is a team effort.
And finally… the rules
Litigation, like the marathon, is an endurance event which has rules to ensure order and fairness.
You wouldn’t expect a runner to trip up a competitor in a deliberate sabotage and performance enhancing drugs have long been disallowed in sport; so too the Civil Procedure Rules and Practice Directions rightly require professional, ethical behaviour, integrity from all participants and a degree of level playing field. Successful litigants run their own race/case, do not get drawn in to attempts at provocation or to derail, and proceed with integrity and respect for the law and our legal system. In parallel there is an expectation of a proper degree of cooperation, and courteous dealings, between the parties. Such cooperation can pay dividends – what goes around comes around, and an amicable resolution can save money.
Congratulations to all who ran the London Marathon yesterday. We salute you!