Practitioners Trapped Between the Techy and the Fairness (2)
- AAmstg
- Jan 26
- 15 min read
Updated: Feb 4
Reflections on Legal Cultures, the Future of Law and the Legal Practise in a Globalized World
Part Two: Matching Practitioners' Commitments to Client's Expectations: Litigation vs Businesses.
The most common dichotomy in the legal profession distinguishes two large areas of practice: one related ⎯, if not exclusively, then preferably⎯ to the activity of trials and tribunals, and one associated with providing services outside the strictly procedural field. The former are labelled under the expression of Litigation Lawyers / Attorneys, the latter with that of Business Attorneys. This second profile is more recent, especially for professionals who exclude from their duties the legal exercise of their more traditional professional understanding in any form. I am with this latter kind.
It is often considered a quality of a lawyer to act before the Courts and Tribunals and is viewed as a badge of prestige. It is frequently regarded as improper to dedicate oneself only to business or, in general, to any legal services that expressly exclude activity before such courts and tribunals. This opinion about a worse condition for a lawyer dedicated exclusively to business is possibly changing; it has already changed since proactive perspectives have gained specific weight since reactive perspectives related to conflicts, their administration and, above all, everything related to preventing them gains traction. Litigation, is going out of fashion?
Going a little further, the Litigation Lawyers should Focus on conflict resolution, defence, and protecting the client's interests in contentious cases (judicial or arbitration). Their mentality is reactive and risk-oriented. They seek to prevent and mitigate possible future legal problems through conservative strategies. Their agreement emphasises value contracts as instruments of protection and mechanisms to impose clear consequences in the event of non-compliance. In short, he is more conservative and is oriented towards the containment, if not elimination, of risk.
In turn, modern business lawyers (I already said that the current categorisation is more recent) focus on accompanying companies in negotiating, structuring and formalising commercial relationships and balancing legal needs with business objectives. Their Mindset is proactive and strategic. They seek to identify opportunities, structure favourable agreements, and minimise risks without sacrificing commercial viability. Counting on these traits, in their Contractual Emphasis Perception, contracts are considered protection tools and instruments of collaboration and value generation. What makes them appear more transactional and balanced between the legal and the commercial, and they will respond more flexibly and pragmatically to risks,
The first post of this series commented on the appropriate training for a lawyer who works in a globalised, interrelated world and in which the amalgam of cross-references derived from regulations complexly intertwined between different industries throw a certain dispersion on what should be done, and what shouldn't.
The problem of putting limits on what should be part of the lawyer's training background is that hyperspecialisation begins to be a characteristic of normative production and, therefore, of the professional who is assigned to which areas of economic activity. And this specialisation conditions in legal service providers the skillness accreditation.
This will be discussed again in the third post.second
What priority should be given to a legal professional: a Litigation Lawyer (and often Arbitration) vs. a Lawyer dedicated to counselling and Dealing with Business Agreements?
The query expressed in these terms is somewhat artificial to a certain extent. Since a legal professional can develop services with a certain flexibility and, at least on paper, the performance of advice, assistance and representation of clients' interests can occur both in and out of Courts. It could be understood that professional performance before and outside the courts is an activity that is not entirely indistinguishable from that of doing so between 'practising' versus 'non-practising' or between 'lawyer' and 'jurist'. An element of external formality determines the border between one area and another, respectively: courts, members of the bar, and non-members of the bar, with one element in common, which is the complete regulated legal training.
Although the answers cannot be watertight, nor is it clear to anyone to know how to differentiate one situation from another. However, prioritising between a litigation lawyer and a business lawyer depends on (i) the context, (ii) the needs of the client, and (iii) the nature of the legal challenges they face. Both profiles fulfil essential roles in the legal ecosystem. Still, their approaches and priorities respond to different times and strategies: the litigation lawyer focuses on resolving disputes (reparation or defence), while the business attorneys seek to prevent problems and maximise opportunities (strategic planning and management).
Both profiles have a common playing field: peripheral conversations and a certain level of 'lobbying' outside the forums for presentation and decisions, whether called courts or settlement tables. Some consider that the litigation lawyer, first of all, understands that being cautious is the first element of defence, so litigation of doubtful success is not recommended; in the same way, some consider that for businesses, a certain acceptance of risk is an element that should guide the commitment to the dynamics of the businesses itself. I believe that the underlying attitude of both is the opposite, but indeed, in both cases, we would be noticing a different perception of what 'precaution' and 'acceptable risk' means.
I am not going to say that business pathologies lead to litigation because this is not the case in most of these pathological cases, nor that litigation is sought by those who make it their business because this is a good way of not explaining anything. I want to believe that a good litigation lawyer does not seek to fuel litigation, just as a good business lawyer does not seek artificiality in a business agreement as long as a contract is signed and it begins to produce its effects. Introducing this dissonant element in either of its two senses could allow us to delve deeper into this matter. The question, then, which does not seek to receive an answer but rather a reflection on each one, would be whether, in the professional's mind, it is possible to grant some room to the temptation to litigate for the sake of litigating. Or trust that a good part of the events about to occur, as soon as the procedure begins, becomes visible and drives a consequent decision.
On the other hand, the perspective on the business's first aim is that of the resource investor (note: every party in a business agreement is a resource investor): to preserve the capital that constitutes those resources committed rather than accept risks without calculating the bets of not doing it so. However, the usual way of approaching the business scenario is not this. Instead, it is to perceive that the exchange equation is beneficial 'per se' for the exchange itself, but ignoring that exchanging is the result of the previous analysis on the opportunity or challenges that underlie each one in the agreement, forcing us to return to the question that matters: is the capital that is previously going to be committed in the business preserved or not? And the question can permeate without shame to litigation's very business (sic).
Returning to the perspective of the resource investor, being seen from that perspective, the dilemma of whether or not to agree to a deal, the option of not agreeing to a deal is usually more beneficial than agreeing to a future disagreement, in most cases. And, given the potential for litigation, is this perspective on a deal different from that of the functional litigator? That is, similarly to how it has been encouraged to pose: is it possible to allow some room for the temptation to close deals just for the sake of closing deals? In both contexts, the risks of such costs are more significant than the benefits, and it would only be advisable to address them in one's deals and litigation but not in those related to others: the clients.
Expressed in these terms, the decisions that derive from the options of the parties and their legal advisors do not differ from the rest of the decisions regarding any market relationship; decisions that result from the distillation of elements in the interweaving of interests, means and ends that all the participants in that relationship express and pursue. Neither the parties involved in each business project or litigation project nor the legally qualified professionals can avoid being immersed in them. Although it is known that professionals also have to deal with their own biasses, priorities and preferences, and from a specific moral commitment, overcome them and subordinately coordinate themselves with those interests they represent and without whose legitimacy they would have no role to play in the aforementioned business projects or litigations.
It seems necessary to draw some ideas on the context to set priorities between the two types of markets where the service packages are developed: litigation and business. In short, we have:
Regarding the Lawyer dedicated to litigation
In a very synthetic way, it should be noted that their primary focus in providing services consists of representing clients in judicial or arbitration disputes and defending rights or interests in conflicts that have already arisen. At the same time, the added value of these services lies in (i) providing legal certainty in situations of uncertainty or litigation (in a broad sense) and (ii) playing the characteristic role of the Lawyer in the forum where it is not possible to prevent a conflict from erupting (e.g., contractual disputes, damages, liability).
In which market contexts are these services relevant? They are highly applicable in intensive adversarial markets or economic sectors where disputes are inevitable (e.g., construction, insurance, international trade). They are essential in jurisdictions or environments where ADR mechanisms are not consolidated or are less efficient.
The challenges faced by litigation professionals are based on reactive situations: their value is perceived at critical moments but can be overshadowed if clients (i) prioritise preventive strategies or (ii) out-of-court solutions; (iii) the introduction of technologies that favour automation of protocols and processes, also lead to a growing lack of interest in litigation or similar procedures (e.g., technologies for objectifying responsibilities and assessing damages and automating risk coverage).
As for the Lawyer dedicated to Contracting and Business,
Similar to the previous case, the professional attorneys dedicated to business have as their primary focus the provision of strategic and legal advice to plan, structure, and manage business operations, minimising risks and maximising benefits. Its added value consists of (i) helping to prevent conflicts through adequate planning and (ii) offering comprehensive solutions that not only solve legal problems but also align legal strategy with business objectives.
Its profile can be accepted because of its greater relevance and significance in the market. It is highly in demand in dynamic and global sectors, where companies seek to quickly adapt to regulatory frameworks and emerging opportunities (e.g., startups, fintech, international trade).
There are two main types of challenges: either due to specific strengths or, on the contrary, the absence of specific threats. They would consist of (i) the relevance of having interdisciplinary skills (i.e. beyond the conventional training of the jurist, particularly in economic and technological areas, and (ii) the prevalence of service markets that have purely or predominantly litigious or legal crisis scenarios, and the latter is a strongly cultural trait in specific market environments such as in the case of civil law.
What factors would determine the preference for one type of professional profile over another? Are there uncontroversial rules regarding such preference or priority?
It would be possible to delimit three types of factors that help determine suitability preferences: (i) those related to the client and their immediate context, (ii) those related to the sector where the business is developed, and (iii) those related to the time factor.
Business and strategic factors can be considered subject to two different determining levers: the momentum of the company and the level of potential conflict. For the former, if the company is expanding, priority will likely be given to the business lawyer or attorney, who can help structure contracts, establish joint ventures, comply with regulations and manage risks preemptively, ahead of a lawyer dedicated to litigation. But if the company faces a significant potential conflict, and that assessment corresponds to the company's management, priority would be given to the litigation lawyer, who can defend the company's interests in judicial or arbitration proceedings and has a specific perception of its sensitivity regarding procedural aspects.
If we consider sectoral factors, it must be recognised that there are industries with a high probability of litigation (e.g., construction, energy, technology); in this case, both professional profiles (litigation and business) are equally a priority, and it would be of special interest to the company that professionals were able to work in a tandem format. Similar to this singularity, some economic sectors focus on innovation or growth (e.g., startups, digital economy). Here, the profile of the business attorney has an initial advantage since the inertia of the litigation processes is not usually well aligned with the speed that is idiosyncratic to some regions of the economy, and the company and the professional focused on adversarial processes (litigation or arbitration) is contaminated by said inertia.
A third type of factor would be grouped around the time driver: temporal factors. In the initial stage of the company or strategic planning, even if it takes place after the company has already had a specific market presence (e.g. when dealing with mergers or acquisitions), the business advisor can prevent costly legal errors. On the other hand, if the company is going through a period of crisis or facing a controversy, especially if it is the defendant, the litigation lawyer becomes the most indispensable professional in terms of the reactive priority of the decision. Suppose the company is the one that has to probe the possibility of a lawsuit. In that case, we are in a strategic scenario where the two profiles must coexist for the company's benefit.
But what to do? Who has priority?
Indeed, priority, as indicated, is always relative to context. However, generally, it can be accepted that the litigation lawyer is indispensable in a reactive or adversarial environment. In a preventive or strategic environment, the business attorney has greater weight. Correctly assigning this sort of reactive vs. preventive tandem is not easy and is part of the company's culture, in which businesses are affected by the opportunity and need to choose what type of professional service is suitable for the occasion.
Ideally, these types of decisions by companies and clients should seek a balance between the challenges and their risks: prioritising the business advisor to minimise risks but having a trusted litigation lawyer as support in critical situations. This dual approach allows both prevention and problem-solving to be addressed, optimising legal security and strategic results. Thus, the inevitable temptation arises to look for a profile that results in the integration of both profiles.
The question is compulsory: Is the hybrid profile advisable?
There is no doubt that the evolution of the legal market increasingly favours hybrid profiles. A lawyer who combines litigation skills with business advisory skills can (i) support clients in all phases of the legal cycle, from planning to dispute resolution. And (ii) offer a competitive advantage by integrating prevention and resolution in a single strategy. The best of both worlds, one might say. But in my opinion, I do not find this type of cumulative solution in a single professional to be preferable to the one that would result from maintaining the appropriate specialisation and integrating it into a talent value chain through the collaborative lever that represents the structure of a company (note: the form this company must show this partnership can be very varied and does not necessarily have to correspond to a corporate structure, especially in international collaborations). For me, it is evident that the professionals who pretend to be able to do everything by themselves, among other things, lose much of the complete image of any context, and the lack of complete perception of the whole scenario can never benefit the client.
Furthermore, the involvement of each professional profile is not simple. Let us look at them in a sequence based on the standard behaviour of each profile. The idiosyncrasies expressly cultivated in each type of professional when faced with a business project/contract and what reactions can be expected to occur. The dilemma that could reflect the unique perspectives and founding priorities could begin fuelled by this question posed to a practitioner.
When & How would you Recommend the Client Compromise in a Business Agreement or Avoid such Commitment?
1. Litigation Lawyer's Perspective
It is claimed that the approach is based on protection and defence. The idiopathic response of the sector is that the litigation lawyer will adopt a cautious approach, prioritising the safety of the client against possible future legal risks. His initial opinion could be: "Make the deal, but minimise the risk with a solid and detailed contract." This Lawyer will emphasise the need to anticipate possible breaches and disputes in the contractual design, establishing clear clauses on conflict resolution, penalties, and guarantees. At the same time, he will argue that a well-structured contract is the best tool to protect against the lack of loyalty of the counterparty.
Along these lines, if the client does not have sufficient confidence in the counterparty, it seems most appropriate to maintain the "Avoid commitment until greater certainty." This Lawyer will tend to dissuade the client from taking unnecessary risks, highlighting the difficulty of enforcing a contract if the counterparty is not loyal or solvent. He could also suggest additional investigations on the counterparty (due diligence) or propose a preliminary phase before formalising the contract, such as framework agreements or letters of intent.
The motivation behind the position is that the litigation lawyer is, it is said, accustomed to dealing with disputes and contemplating the worst possible scenarios. This leads him to prioritise preventative measures and a more conservative approach to contractual risks. If that is really how they feel, there would still be those who would like to confirm it in the comments (or discuss it at your ease).
2. Business Lawyer Perspective
The advisor's perspective is considered to be opportunity- and strategy-oriented. From this perspective, the typical response from the advisor would be to focus on a balanced, strategic approach, seeking to maximise opportunities without compromising legal certainty. His advice might be this: "Pursue the deal if the potential benefits justify the risks, but incorporate mitigation mechanisms into the contract." He would view the deal as an opportunity not to be missed, provided sufficient safeguards exist to manage the risk. At the same time, he could propose more creative safeguard clauses (for example, staggered payments, suspensive conditions, or joint audits) that not only protect but also build trust between the parties.
Again, suppose the client does not have sufficient trust in the counterparty. In that case, submitting to this other rule of conduct seems appropriate: "Accept risk if you can manage it, but diversify and maintain flexibility." Thus, rather than avoiding engagement altogether, the advisor might recommend exploring ways to move forward gradually, such as preliminary agreements with exit options or collaborations limited in scope and time. His approach would be to balance the risks with the possibility of building a fruitful business relationship.
The business lawyer sees contracts as tools of protection and vehicles for growth and collaboration. This type of profile's stance is motivated by the business lawyer's tendency to take a more optimistic approach to risks as long as they are calculated and manageable.
3. Common and differential factors in the responses of each professional profile.
The similarities are as follows: (i) Both will recognise the importance of a well-designed contract as a fundamental tool to regulate the relationship and protect interests and (ii) Both will recommend carrying out a risk assessment before making a final decision, although they will do so from different perspectives (protection vs strategy).
The key differences are these:
(i) Litigation Lawyers focus more on avoiding future risks and anticipating possible disputes. They tend to be more conservative in their recommendations, preferring the prudence of abstention over opportunity.
(ii) Business Lawyers focus more on maximising opportunities and coordinating risks with potential benefits; they also tend to be more proactive and optimistic, looking for creative ways to advance achievements despite uncertainties. Identifying and covering risks is one of his priorities.
It now seems interesting to note that it is not the professional's perception but the client's that determines ultimate suitability. This is very convenient and leaves the determining power of the entire relationship in the hands of who really should hold it: the demand, never the supply. With this, we arrive at a particular conclusion from all the above.
4. Conclusion and synthesis:
If the client values legal security and protection more, the litigation lawyer will likely recommend avoiding engagement or imposing strict conditions to complete the deal. Suppose the client is willing to take risks in pursuit of strategic benefits. In that case, the business lawyer will look for ways to accept the risk with creative and collaborative mitigation measures.
Both roles are complementary rather than cumulative, and an optimal decision for the client may require a combination of both approaches: the caution of the litigator to protect against breaches and the strategic vision of the advisor to capitalise on opportunities. But I am biased. The current profile of the Business Lawyer is no longer limited to that of a contract drafter. By becoming an active player in promoting the agreement, given that he has acquired experience in the businesses he is involved in launching, the comparison ceases to be a dichotomy between a contentious approach (litigation) and a preventive one (business advisor) to include a transactional and hybrid approach.
Thus, the modern Business Lawyer has a more comprehensive vision that combines legal, financial, and commercial aspects, allowing him to approach business dilemmas with more pragmatic solutions. Compared to the litigation lawyer, a business-focused lawyer is more likely to suggest accepting the risk under specific conditions and structuring a contract that facilitates the relationship and protects interests without compromising the viability of the business.
However, it is worth staying with just two ideas for now:
As read above, the decision to prioritise one or another professional profile depends on the moment and the client's needs. So (i) if the clients seek to protect themselves in an adversarial environment, the litigation lawyer remains crucial; and (ii) if the client needs to advance a business with reasonable uncertainties, the business lawyer has an advantage since he can balance legal risks with business opportunities.
In a competitive and globalised environment, having both profiles working in synergy is the best strategy: the business lawyer to build and plan and the litigation lawyer as support in case of conflict. These are updated roles within the logic and demands of the legal relations market that make societies progress.
The following post deals with what we might consider a 'legal technician' when the perspective is clouded by excessive legislation, the administrativeization of institutions, and the very practice of administering justice.
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