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Litigators cannot be ‘one-trick ponies’
In a “new era of corporate responsibility”, the lines between class action litigation and regulatory investigations and litigation will start to blur, meaning that lawyers in this space will have a redefined role if they want to grow their client bases.
Jerome Doraisamy
Speaking recently on The Lawyers Weekly Show, Herbert Smith Freehills partner Jason Betts (who was a finalist in the litigation partner of the year category at the 2021 Partner of the Year Awards, having last year won the excellence award) said that litigators are having to adapt to a “significant refresh” being undertaken by regulators and, correspondingly, corporate clients.
The aforementioned combination is “challenging”, Mr Betts reflected, and unfortunately, he said, “litigators be activated in managing the consequences of not meeting those very high and changing standards”.
“It’s just a matter of life that as our regulatory and corporate governance structures improve and the standards are more demanding, our clients are going to need us more to be protecting their risk in that space,” he explained.
Alongside such change is the blurring, Mr Betts continued, between litigation for class actions and that for regulatory investigations.
It will, he proclaimed, “be one big risk package”.
Litigators, he warned, “had better be across all of that”.
“You’re going to have to be good at all of that to be successful for your clients because one-trick ponies are good at one area of law. That’s going to be a limited utility in growing the client base.”
Fellow HSF partner Christine Tran (who was a finalist in the new partner – three years or less category at POTY) agreed, saying that “gone are the days where, as a litigator, you can put a bit of distance between yourself and clients and say, ‘Look, we’re dealing with the courts. This is my area of expertise. I’ve got it under control’”.
“You really do have to work with clients because the issues are complex and nuanced, and it can have a cascading effect as well. And if clients wish to use litigation as a type of business strategy, being well-versed in all those areas is going to be really, really important,” she advised.
Complicating matters for leaders of litigation teams, Ms Tran added, is the “tension” of busier workloads for those teams. This means, she said, leaders must be “attracting and retaining talent and developing talent and making sure that we’re taking care of our people in that context”.
Litigation teams will soon have to determine how best to ensure that increasing workloads are sustainable, the pair argued, given that clients are already starting to demand that their lawyers offer this “blurred risk package”.
Clients are “ahead of the trend in some ways”, Mr Betts mused, especially in light of what he called the “politicisation of class action litigation and the commoditisation of regulatory function”.
“If you have an issue now, you are worried about maintaining your ability to maintain your earnings guidance, or you’re worried that you’re not going to be able to achieve a carbon target, or you are worried that you’ve got a systemic problem with your systems that’s going to cause you to overcharge all of your customers and the regulator’s going to be interested in that, that’s not one risk functionality. That’s a regulator, that’s a private litigation funding company promoting a class action. If there’s a PR promotional issue, there’s a real stakeholder issue. Am I delivering value for my shareholders? Are they going to be happy with me? There’s a media component. There’s a political component,” he detailed.
Moving forward, Mr Betts opined, litigators need to engage with all of the aforementioned queries “because otherwise, their advice is useless”.
“It’s great to know whether you’re going to win or lose a case, but that’s frankly the worst situation for a client to be. If you’re in that situation as a litigator, in some part, you failed.
“I think our clients are demanding us to be holistic risk advisors, and it’s right for them to demand that,” he surmised.
“The challenge for litigators is making sure that you’re smart enough to get good people around you when you don’t know the answer, but you’re also upskilling yourself to be able to safely guide your clients in these spaces.
“When you’re responding to a regulator who’s issued a notice for documents, you’d better have your eye on how a class action litigation funder will use those documents. You can’t think of it in one way. That’s where the clients are dragging us, and I think they’re right to do that.”
Earlier in 2021, Mr Betts and Ms Tran presented a two-part Masterclass series on conducting investigations without creating new legal risks. To view these sessions, click here.
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Jason Betts and Christine Tran, click below:
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
You can email Jerome at:
