In the movies, and in TV series, lawyers are often portrayed as aggressive. As they are, sometimes, in real life.  But does aggression really pay off? Should aggressive lawyers tone it down? Should more mousey lawyers be going for assertiveness training?

There are a few things to unpack here:

• Is there any correlation between aggressive lawyers and successful lawyers?
• Insofar as there is any such correlation, which is the cause and which is the effect, or are they effects of a common cause?
• When does it pay off to be aggressive? And can leopards really change their spots? Or zebras their stripes?

The first thing to do here is to separate aggression from self-confidence and determination. For dispute resolution lawyers, the latter is certainly a desirable quality, and essential for anyone who aspires to any leading role. I can perhaps illustrate this best by recalling an incident from Continue reading →

The TV programme I recently did on pendulum arbitration for BenchTV is now up. The preview is at vimeo, and the full programme is here.

The programme takes the form of an interview by Christopher Chin.  The content is essentally a summary of what is available elesewhere on these pages, but in a form that some might find more easily digested.

BenchTV’s Continue reading →

People have been continuing to say kind things about my book Extra-Contractual Recoveries for Construction and Engineering Work, and it is gratifying to know that practitioners are finding it useful.

Somewhat belatedly, I have now sent to the UK Society of Construction Law the written version of the paper which I delivered for them in London in December. It is as follows:

CLAIMS OUTSIDE THE CONTRACT FROM A COMMON AND A CIVIL LAW PERSPECTIVE

PART ONE: THE COMMON LAW PERSPECTIVE

A Paper given to the Society of Construction Law

December 2023

Robert Fenwick Elliott

CLAIMS OUTSIDE THE CONTRACT FROM A COMMON AND A CIVIL LAW PERSPECTIVE

PART ONE: THE COMMON LAW PERSPECTIVE

Robert Fenwick Elliott

Introduction

Before turning to the subject matter of this topic, I would like to consider what we, as practising lawyers, are really doing, in the law? Let us leave front end lawyers aside for a moment, and focus on what is going on when clients come to us with a problem. It seems to me the skill is really twofold. On the one hand, it is all about prediction. Clients come to us and ask: what is Continue reading →

There are several parallels between litigation and military conflict, and in the latter, there is often an advantage in surprise. But how often does surprise provide an advantage in litigation of construction disputes?

The answer, in my experience, is “very rarely”. At any rate, until a very late stage, if a case ever comes to trial and counsel needs to do some “gate closing” in cross-examination.

The problem with using surprise as a tactic is not so much with surprise itself, but rather because it tends to interfere with the process of frank engagement about the merits in case between the parties in the early stages of a dispute.

Litigation is never a zero-sum game. The aggregate position of both parties at the end of the process is almost invariably worse than their aggregate position at the beginning of the process. So why do people do it, rather than resolve their disputes amicably at the outset? Sometimes, it is simply a rutting display. More often, the key factor is that one or both parties is mistaken as to its prospects.

My advice is always to consider the possibility that it is you that is mistaken. On a simple analysis, that might be a 50-50 chance? Before you discount that possibility, bear in mind the evidence that a preponderance of men think that they are better looking than average.[1] Obviously, lots of them are wrong about that. An even more striking preponderance of women think that they are more beautiful than average[2], and lots of them are wrong about that too. Apart from this natural tendency to self-aggrandisement, there are factors in the law which tend to Continue reading →

… happily, at the Society of Construction Law lecture.  I am told that:

The feedback from the audience was universally positive and it was really pleasing to see a full house, even with the train disruption. A fitting end to the year of lectures.  

Hopefully, at least some of the audience will have been tempted to buy my book. People have been buying it, and finding it useful, in a number of common law jurisdictions. But not nearly enough!

It was good to catch up with some old friends in London, and to see my old firm doing so well.

Back in Australia Continue reading →

I am very pleased to see that my lecture in London for the Society of Construction Law (well, half-lecture) is fully booked out for next week.

Questions will hopefully be easy. I should be able simply to tell them that it is all in my book Extra-Contractual Recoveries for Construction and Engineering Work, available from London Publishing Partnership.

In any event, it will be good to see Continue reading →

For a long time, the Society of Construction Law has run lectures which have been delivered at the National Liberal Club in London. I have been to many of them, usually listening but sometimes speaking.

And so it will be a happy return to an old haunt when I will be on my hind legs again for the Society in a couple of weeks.

The topic is Claims Outside the Contract from a Common and a Civil Law Perspective; I will be doing the common law half and Chris Seppälä from White & Case in Paris will be doing the civil law half. It will be chaired by Mrs Justice Joanna Smith, who sometimes sits in the TCC.

I like this notion of Continue reading →

Stop Press 5th March 2024:

There was apparently a glitch here: the flier was not getting circulated properly. The Mediation Manager since now agreed to “ensure [that] the Mediation Unit staff are aware of the flier for any future enquiries.”

Hopefully, litigants in the Adelaide Magistrates Court are getting proper information about this.

The South Australian Magistrates Court has invited me to prepare a one-page flyer to be handed out to parties in cases which may be suitable for pendulum arbitration, and now approved that document. The Word version is thus: MC Flier

The text is as follows:

Pendulum Arbitration

A Faster and Less Expensive Alternative to Litigation or Conventional Arbitration

Pendulum arbitration (also known as baseball arbitration) is a type of arbitration that has been extensively and successfully used in the United States to resolve disputes more quickly and with less cost than litigation or conventional arbitration. It is also now available in South Australia for appropriate cases.

What is pendulum arbitration?

In this form of pendulum arbitration, the parties attend a one-day hearing in which they each put their case. At the end of the day, each party hands the arbitrator a proposed draft award, and the arbitrator chooses one of these drafts as the final award, without modification.

How does it work in practice?

Prior to the hearing, each party puts in a written statement of its case, including any material on which it wishes to rely. There is no discovery of documents. Continue reading →

I have put up a model pendulum arbitration agreement: see https://feconslaw.com/pendulum-arbitration-2/model-pendulum-arbitration-agreement/.

Clearly, this model is just a template, and will need finetuning for each case. So it is there on a “no responsibility” basis!

My breakfast briefing proceeded as planned yesterday, and went OK.

I understand that DRBF members will be able to get the Powerpoint. And it was recorded, so they can even watch it again, if really keen.

Or watch it for the first time, if still asleep yesterday morning.