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PART 3
Law bulletin

131
Chapter 11 Law bulletin
Learning Objectives
This chapter contains a selection of articles on topical legal issues. By completing the
tasks in this chapter you will have:
 Read and considered an article on the distinction between barristers and solicitors
 Read and considered an article on witness examination in the courtroom
 Read and considered an article on the Asian legal market
 Read and considered an article on international litigation
 Practised relevant grammar exercises including tense review and comparative and
superlative forms of written and spoken EnglishText 1 – solicitor or barrister?
Read the following article then complete the exercises which follow.
WHICH ROUTE–SOLICITOR OR BARRISTER?
Many students have decided on a career in the law, but are unsure
of the next step. Margot Taylor explains the pros
and cons of each branch of the profession
The two main branches of the legal profession are solicitors and barristers (advocates in
Scotland). There are also legal executives, who regard themselves as a third branch. In the
past ten years, the difference between the branches has become increasingly blurred:
solicitors can now qualify as higher court advocates, and barristers can deal directly with
some kinds of client (chiefly other professionals) without the need for the client to see a
solicitor first.
TYPE AND VARIETY OF WORK
Solicitors' work covers a broad range, including advising commercial and private
clients on business matters and property and undertaking litigation. The degree of
Part 3  Law bulletin
132
specialisation of solicitors' firms varies enormously. Some offer general legal services,
from conveyancing and drafting wills to acting for defendants in criminal cases. Others
specialise in one or two areas, perhaps doing only corporate work or personal injury
work. The smaller the firm and the broader its range of work, the less likely its solicitors
will specialise in only one area.
Most barristers' work is confined to litigation, although some do largely advisory
work, for example on taxation or company matters. Traditionally barristers specialise
in one or a few areas of law, although this is not true of all. In their early years most undertake
a broad range of cases until they develop expertise in a particular area. Some
barristers in "general common law" chambers continue to have a broadly based practice.
Whether, or how much, you specialise as a barrister will depend to a large extent
on the cases you get in your early years.
So, if you do not want to do litigation, think twice before you become a barrister. Otherwise,
whether or not you specialise will not rest entirely on whether or not you join the
Bar or become a solicitor but will be influenced by the type of firm or chambers you join.
TRAINING
Beyond the academic stage the training to become a barrister or solicitor is very different.
The Bar Vocational Course is exclusively focused on the skills and knowledge
required of an advocate: litigation evidence drafting advocacy, etc. This is followed by
12 months of pupilage. The Legal Practice Course is much broader and covers business
law and practice, property and litigation and advocacy. This is followed by a two-year
training contract in a firm.
WORKING CONDITIONS
Most solicitors are salaried employees and keep office hours, report to a senior person
and work within the collective ethos of the firm. However, they generally have "billing
targets" (to achieve a number of chargeable hours) which can be stressful and require
detailed record-keeping. Barristers are self-employed but usually work out of chambers
(a group of barristers) with a clerk who takes referrals from solicitors. Theoretically free
to work as and when they please barristers must be available to take work as it comes
in. Barristers are generally paid a fee for each piece of work from which they must
deduct their share of the costs of running the chambers. A barrister's earnings are therefore
much less secure than a solicitor's, particularly in the early years.

ADVOCACY
Many barristers, particularly those doing criminal work, spend most of their time as
advocates. However, some civil practitioners spend more of their time dealing with
cases out of court. Solicitors have rights of audience in the lower courts and although
many do no advocacy some do a substantial amount.
Some solicitors qualify for rights of audience in the higher courts, with some City
firms encouraging this. The advantage of this route over qualifying as a barrister is that
you work from the base of a legal practice. It is done to enhance your work. The disadvantage
is that you are unlikely to do the same volume of advocacy as those who qualify
for the Bar. If you really only want to do advocacy, the Bar, particularly criminal
work, is probably the place for you.
CONTACT WITH CLIENTS
A solicitor has overall conduct of a case and develops a working relationship with the
client, which can be rewarding. But it can also be frustrating, particularly dealing with
Chapter 11  Law bulletin
133
the more demanding clients, accounting for all client money and dealing with documentation
and costs. Abarrister is briefed by the solicitor for specific tasks, for example, drafting
a document or acting as an advocate. This would appeal to someone who dislikes
routine paperwork but can be frustrating if insufficient or wrong information is provided.
Abarrister may have little opportunity to develop any relationship with the client.
NOT A FINAL CHOICE
The division between solicitors and barristers is becoming less distinct, with solicitors
doing more advocacy and clients instructing barristers directly. Moving between the
two halves of the profession is straightforward, so a choice now will not dictate your
work for life.
Margot Taylor, Principal Lecturer, Inns of Court School of Law: The Times, 20 January
2004, Student Law, p. 11.
Answer the following questions concerning the above article.
1. Explain in a few sentences the main difference between a barrister’s work and that of a
solicitor.
2. How long does a trainee barrister’s pupillage last?
3. How long does a trainee solicitor’s training contract last?
4. Which branch of the legal profession developes a closer on-going relationship with clients
and why?
5. State two areas of law which solicitors can specialise in.
6. What factors influence the areas of legal work a barrister becomes involved in during the
initial stage of his or her career?
7. Where do barristers practise from?
8. Which branch of the legal profession do you consider yourself best suited to and why?
Discuss.
Exercise 1 – comprehension
Complete the following sentences by filling in the blank spaces with appropriate phrases from
the text.
1. Barristers’ work predominantly involves [1] , i.e. court work.
2. There are basically two types of lawyers in England, namely solicitors and [2] .
3. Solicitors are often under pressure to achieve [3] .
4. Barristers undertake a [4] course following the academic stage of
their training.
Exercise 2 – word search

Part 3  Law bulletin
134
5. Solicitors undertake a [5] course following the academic stage of
their training.
6. Solicitors have overall conduct of a case whereas barristers are [6] at specific
stages of a case.
Text 2 – techniques for cross-examining a witness
in court
Read the following article then complete the exercises which follow.
HAVING CROSS WORDS IN THE COURTROOM
Q How do you start to prepare for cross-examination?
A Practitioners prepare for cross-examination differently. Some start with the witness
statement (which stands as, in most civil cases, the evidence in chief). They then
work through the points the witness supports in the other side’s case, take out a list
of other issues that need to be challenged, mark any internal inconsistencies in the
witness statement, explore the trial bundle for documents to put to the witness, and
work out a series of questions from there.
A better approach is to start from the propositions you would like to make in the
closing submissions – and work backwards. Sometimes arguments are raised in closing
submissions that have not been put to the witnesses during cross-examination.
This is unavoidable as cases change considerably during trial. However, more often,
it is because the themes of the witnesses’ evidence had not been tied in to the closing
arguments beforehand. Alert judges are aware of this. How often have you heard in
judgments ‘XYZ was not put to the witness, so I am unable to make a finding on
that...’ or ‘counsel chose not to challenge that in evidence...’ Sometimes the failure to
challenge is deliberate; often it is not. You can reduce the risk of this happening by
tying in, from the start, the themes of your cross-examination with the bare threads
of your closing argument.
An effective way to start your preparation is to consider from the outset the theme
your series of questions is going to follow. The theme will be case-specific, designed
to deal with your client’s slant on a particular issue that the judge must consider
when reaching his decision. Equally, your theme may be based solely on discrediting
the testimony of the witness. Either way, this theme should be prevalent
throughout your questioning.
Set out your theme on a cross-examination ‘route plan’ – an overall guide to your
cross-examination from where all your notes and questions will be devised. Only once
this is prepared are you ready to start effectively preparing your cross-examination.
Chapter 11  Law bulletin
135
Q How should I approach my cross-examination route plan?
A Your route plan is the guide to where you want to take this witness in front of the
judge (or jury in criminal cases). The purpose of any cross-examination is twofold: to
elicit favourable evidence and discredit evidence that is unhelpful. Anything else is a
fishing exercise, which should be avoided. Set out the following on a sheet of paper:
 Which part of this witness’s evidence in chief assists or supports your case? Usually
there are a few agreed facts – make a list of these.
 How can this witness corroborate your theory of the case? Tie these agreed facts in
with your theory of the case and consider the propositions required to turn this
witness into corroborating your client’s slant on the issues.
 What must this witness admit? Make a list of the propositions you would like this
witness to admit – these propositions should all tie in with your theme for this
witness and the overall theory of the case in closing.
 What should the witness admit? Consider what the witness cannot deny from the
agreed facts – the propositions from which he cannot possibly escape. Use these to
develop your position in other areas. These are all useful tools for effective crossexamination.
Q What tips can you give practitioners in advance of their first cross-examinations?
A Cross-examination depends on your audience. You are expected to act in a different
way before juries or lay magistrates than you are in front of a county or High Court
judge or a lawyer-led tribunal. Remember who your audience is and be flexible. On
presentation, it is usually a good idea to bear in mind the following advice:
 Make your questions leading – answers should be yes or no. If you ask an open
question, the witness can respond in any number of ways.
 Make a statement of fact and ask the witness to agree with it. The best practitioners
keep control of their witnesses by putting facts to the witness in the question and
asking them ‘do you agree?’ This leaves the witness with no room to manoeuvre
into unhelpful matters. Lead up gently to the main question with a series of agreed
facts from your route plan.
 Be confident. Advocacy is like acting – and even more so in jury trials. If you do not
project gravitas and authority the effect of your cross-examination will be lost, a jury
will not be impressed and the witness will start to take advantage.
 Be polite to the independent and expert witness, unless circumstances dictate
otherwise.
 Listen to the witness. Often cross-examiners are not listening to the witness. This is
acceptable if the witness provides you with an expected answer, but witnesses are
more often than not sophisticated and unpredictable. Listen to what they are saying
and be prepared to challenge an issue they raise for the first time.
 Do not, under any circumstances, argue with the witness. All too often cross-examiners
respond to throwaway remarks by witnesses designed to challenge propositions
put to them. If they answer a question with a question, tell them it is your role
to ask the questions and their role to answer them.
On content, remember:
 Make your strongest points at the start and end of your cross-examination.
 Keep your eye on your audience; judge the reactions. You may not need the
audience’s constant attention – you may, after all, be eliciting evidence for a closing
submission – but you do need to keep its interest or provide for it a point of
reference if you want the audience to follow your theme on closing.
Part 3  Law bulletin
 Vary the order of subject matter. This may be better done by taking it issue-by-issue
or chronologically.
 Try your best not to allow the witness to repeat his direct examination.
 Know the probable answer to each question – and devise a route plan for any unexpected
answers.
 Do not start to prepare a script of all the questions you propose to ask. It may make
you feel safer having all the questions on one sheet of paper, but it will not help you
on the day.
This column was written by Justin Michaelson (Weil, Gotshal & Manges) on behalf of
the Solicitors’ Association of Higher Court Advocates (SAHCA): Gazette, Vol. 101,
No. 13, 1 April 2004, p. 6.
Match each word from the first column below with a corresponding word in the second column.
By way of example the first one is done for you.
Exercise 3 – word collocations
witness question
open trial
cross examination

jury statement
High chief
examination in Court
Complete each blank space below by inserting a word or phrase from the text which is similar
in meaning to each of the following. (The paragraph number of the text in which the answer is
located is indicated in brackets to assist you.)
1. closing submissions c _ _ _ _ _ _ _ _ _ _ _ _ s (para. 2)
2. contentions p _ _ _ _ _ _ _ _ _ _ _ (para. 2)
3. witnesses’ version of events witnesses’ e _ _ _ _ _ _ _ (para. 2)
4. backs up your legal arguments s _ _ _ _ _ _ _ your c _ _ _ (para. 5)
5. court representation a _ _ _ _ _ _ _ (para. 6)
6. advocates who question other party’s witnesses c _ _ _ _ e _ _ _ _ _ _ _ _ (para. 6)
Exercise 4 – word search
136
Chapter 11  Law bulletin
137
Text 3 – the Asian legal market
Read the following text then complete the exercises which follow.
ASIAN TIGERS PREPARE TO SPRING
AFTER A DECADE OF ECONOMIC TURMOIL, ASIA IS BUZZING.
WHILE SOME LAW FIRMS ARE CAUTIOUS ABOUT HAVING
A PRESENCE THERE, MANY WANT TO TAKE ADVANTAGE OF
RISING INVESTMENT, SAYS LUCY HICKMAN
Economically speaking, Asia has had a hard time over the past few years. Deep recession
lasting nearly a decade for most Asian countries – including former linchpins
Hong Kong and Japan – political unrest for many, and then the SARS virus provided
the poisoned icing on the cake. All of this, of course, has affected lawyers.
Most international law firms with Asian offices have dug in deep to weather the
storm, often redeploying fee-earners when the worst-struck practice areas–finance and
corporate – hit rock bottom. As Don Kelly, Lovells’ regional managing partner for Asia,
says: ‘Staffing issues are an ongoing challenge. We do the best we can. Fortunately, our
people tend to be pretty flexible.
‘Our Vietnam office – which we have had for ten years – is a good example of this. In
the early years, there was lots of intellectual property and project work in the region, so
we kept it staffed up all the time. Then things went a bit quiet, so we ran the office on a
fly-in, fly-out basis. There’s a sense of revival again now and we make sure there’s always
a Lovells lawyer sitting in that office. It just won’t always be the same lawyer or
from the same practice area.’
With the economy and therefore the legal work in Japan and Hong Kong showing
definite signs of improvement, and China positively booming, it seems the law firms’
patience may be paying off.
Paul Browne, a Tokyo-based finance partner with Simmons & Simmons, says: ‘Japan
is the world’s second biggest economy but it’s been suffering in recession for ten years
or so. However, there are definitely signs of improvement in Japan – and in other parts
of Asia too – and people are generally cautiously optimistic. We’re seeing increasing investment,
which has a knock-on effect on the requirement for lawyers.’
A strange time then, perhaps, for Denton Wilde Sapte (DWS) to disband its Asian
practice, closing offices in Hong Kong, Beijing, Tokyo and Singapore, in a move affecting
12 partners and around 100 staff in total. The withdrawal follows on from the firm’s
strategy review, which was launched 18 months ago in a bid to bolster profits (see
[2004] Gazette, 16 April, 6).
DWS declined to be interviewed by the Gazette, but on announcing the closures last
month, chairman James Dallas said the Asian practice was not strategically necessary
for the sector groups on which the firm now wants to focus: energy, infrastructure
and transport; financial services; real estate; and technology, media and telecommunications.
‘We have concluded that we should withdraw from Asia and direct more resources
to areas with stronger client demand, including Europe, the Middle East, and elsewhere,’
he said in a statement.
Part 3  Law bulletin
138
Meanwhile, Freshfields Bruckhaus Deringer is also poised to close its three-partner
Bangkok office, which has a total staff of 81. It has already downsized its operations in
Singapore, not replacing staff when they leave.
Mr Kelly says that DWS’s withdrawal from Asia was on the cards, with numerous
CVs from DWS lawyers flying around before the announcement. However, he finds
Freshfields’ retreat from Bangkok more puzzling.
‘It’s a strange time to be pulling out of Asia. It’s been very tough over the last three
years, but recently we have seen definite signs of improvement. Firms that have been
here throughout the hard period will have spent a lot of time, money and effort, and
now is the time they may be seeing some return on that investment.’
Most agree though that south-east Asia is a hard market to crack. As Ashurst’s Japanese
group head, Alan Kitchin, says: ‘South-east Asia is very difficult. It’s very competitive
on fees. You tend to be acting more for the [local] law firms than for the banks in
that region, so it’s hard to keep the rates up. Firms in there are really struggling.’
Wong Kien Keong, Baker & McKenzie’s Asia-Pacific chairman, adds: ‘Well-known
firms have folded up their operations in some major money-centre jurisdictions like
Hong Kong and Singapore, while larger domestic firms are getting some cross-border
work which eats into the pie of the international firms.
The quality of domestic firms is also improving, particularly in Hong Kong, China,
Bangkok and Singapore.
‘The least lucrative market continues to be Manila among the countries which receive
significant foreign direct investment. Other countries on the fringe in Asia will
continue to suffer, like Myanmar, Laos and Cambodia,’ he predicts. These are all countries
where no UK firm has set up.
Perry Noble, Freshfields’ managing partner in Asia, says: ‘The economic conditions in
south-east Asia have been pretty tough. There was the economic crisis at the end of the
1990s, then the technology boom died out and there has been a lot of political unrest.
‘We have taken the decision to withdraw from the Bangkok market, or we are at least
considering it in principle. From my point of view, no one makes any money in that
part of Asia and I have a responsibility to the partners to get the best return on their investment.’
He says the economic conditions recently have made the decision about where to
invest more difficult. ‘It’s not necessarily that I believe there will be no growth in
south-east Asia – it probably is improving – but the prospects don’t justify that level of
investment.’
Since 1997, Lovells has had an office in Singapore which acts as a hub, handling
work throughout south-east Asia.
Mr Kelly says his firm is considering a series of strategic alliances in the regions,
which should open up the local markets without the financial risk of opening offices in
jurisdictions such as Thailand and Indonesia.
‘It may well be that we will be looking to do more with local firms. We would like to
have more presence there but short of opening a new office. It remains difficult around
there,’ he says.
Lovells’ director of international projects, Marc Bartel, adds: ‘There is a buzz about
some parts of the region, but you might have a flavour of the month with people looking
to revive deals in one place, then, because of a bit of political instability, the focus
changes. We are keeping our ears to the ground on this one.’
Ashurst, which has offices in Singapore and Tokyo, has no intention of pulling out of
Asia.
Mr Kitchin explains that, as the Asian market generates an enormous amount of
work for its other offices, including London, and that at least three of Ashurst’s top
20 clients are Japanese, the firm is planning to expand its Asian operations.
He says: ‘We are looking at China. We have never merged; we like to do things ourselves
and every year we open a new office. We don’t want to compromise our quality
by being all over the place for the sake of it, but China is a difficult market not to be in
because so many clients want to do business there.’
Since its 2001 entry to the World Trade Organisation, China has become one of the
world’s fastest-moving economies, with year-on-year growth of gross domestic product
at 8%, foreign direct investment (FDI) at 57%, foreign trade at 40% and industrial
output at 17%. Law firms not yet established there want to be, and those already there
are looking to expand – with the obvious exception of DWS.
With the opening up of international trade, and massive inward investment, foreign
investors are attracted to what they see as a largely untapped market and a low manufacturing
cost base.
The Chinese government’s push to transform the energy markets has rejuvenated the
sector, while the liberalisation of the Chinese banking system allows foreign banks to
provide local currency business to Chinese clients. And since the business and regulatory
environment is not as developed as in more sophisticated markets, there is also a
need for lawyers to advise not just on expansion and investment but also on restructuring
and reorganisation.
Mr Keong says: ‘The most lucrative Asian legal market remains China. It has the
highest amount of FDI in the world. The Chinese legal market is possibly one of the
largest in the world, because it requires a great deal of financial and legal skills to lift its
economic standard to a level closer to the developed world.’
Michael Liu, head of Allen & Overy’s Asian corporate group, says that to gain a firm
foothold in the Chinese market, one must not look at China as being independent from
Hong Kong – sovereignty of which was handed back to the Chinese by the British
seven years ago.
‘We need to think of our Chinese practice as one team in three locations. Beijing is the
government seat, and Shanghai and Hong Kong are the major commercial centres. You
need full service capability in all three cities to cover the Chinese market effectively.
‘Hong Kong remains a key world financial and business centre, but it is now just one
piece of a bigger jigsaw.’
The firm’s head of Asia practice, Brian Harrison, says: ‘As our clients are stepping up
their presence in the Chinese mainland market, we will follow suit and further expand
our presence there. On the other hand, there are also business opportunities to serve
the needs of Chinese companies which are revitalising in preparation for further market
competition. So the timing is ripe for us.’
Freshfields has had offices in Beijing and Shanghai since 1993, and Mr Noble says
China is an important part of the firm’s plans.
He says that 75% of the work done by the firm’s 18-partner Hong Kong office has a
Chinese connection.
‘China has been important for all businesses in Hong Kong. SARS didn’t help and
Hong Kong has been dire for a long time, but the work coming from China has been a
real relief for everybody.
‘Hong Kong is a small market and ever since its return to China, the economic conditions
have been poor. Combine that with the fact the area is massively over-lawyered and
you get everyone cutting each other’s throats on the price of work. It has been very tough.’
What could escalate the Asian legal market’s revival are plans by the Japanese and
South Korean governments to allow foreign law firms to form full partnerships
with – and also employ – local lawyers. It is expected that the restrictions will be lifted
next year, says Mr Browne.

‘Deregulation will improve things. We have a joint venture with a big Japanese law
firm and to them the prospect of deregulation is an exciting one because they are very
Chapter 11  Law bulletin
139
Part 3  Law bulletin
international in their outlook. At the moment though, we are not considering a full
partnership. We are very happy with the model we have got,’ he says.
Mr Kelly says rumours are rife of plans by English law firms to merge with Japanese
firms – although he declines to name names.
For Lovells though, a full merger is not on the cards, with the firm preferring to introduce
local talent on a lateral-hire basis.
‘We want Japanese law capability but cherry-picking individuals is certainly where
we would like to start. Then we will see how it goes.’
In south-east Asia, the cautious approach of retreating firms like DWS has yet to be
weighed against the go-getting strategies of others. But given the speed of developments
in the region, it should not be too long before the winning strategy reveals itself.
Lucy Hickman, freelance journalist: Gazette, Vol. 101, No. 20, 20 May 2004, pp. 24 – 7.
1. Which areas of legal practice have been most adversely affected throughout Asia as a result
of recession?
2. Which country has the second largest economy?
3. In which country is demand for legal work ‘booming’?
4. Name an Asian country in which no UK law firm has set up.
5. What does ‘FDI’ stand for?
6. What are foreign law firms likely to be able to do in the near future which could assist in
reviving the Asian legal market?
Exercise 5 – comprehension
Find alternative words or phrases from the text meaning the same as the following.
1. transitory basis (para. 3)
2. thriving (para. 4)
3. plan (para. 6)
4. retreat (para. 8)
5. reduced (para. 9)
6. likely (para. 10)
Exercise 6 – vocabulary
140
Chapter 11  Law bulletin
141
Complete the following sentences by putting the verbs in brackets into the correct tense
forms.
1. Since 2001 China’s economy [1] (develop) fast.
2. The partners [2] (meet) at 3.00 pm last Friday.
3. Several law firms have [3] (open) offices in Beijing recently.
4. At least one law firm has recently [4] (closing) an office in Singapore.
5. Demand for legal work in Hong Kong is [5] (show) signs of improvement.
6. The Chinese legal market is [6] (provide) increasing work for foreign law firms.
Exercise 7 – tenses
Written and spoken English commonly includes expressions (idioms) which are intended to
convey a meaning other than the literal interpretation. There are a number of examples of idioms
within the text. For example: ‘... the SARS virus provided the poisoned icing on the
cake’. The words ‘poisoned icing’ are in fact used to relate to the reader that the SARS virus
was a further factor contributing to recession in Asian markets rather than having anything to
do with actual icing on a cake!
TASK 1
Match each of the expressions in the first column below with its corresponding meaning in the
second column. By way of illustration the first one is done for you.
Exercise 8 – idioms
weather the storm reduced
hit rock bottom difficult market to enter
on the cards monitor events
downsized survive a difficult situation
hard market to crack currently popular
ear to the ground likely to happen
flavour of the month to be at the lowest point
TASK 2
Now complete the following sentences by filling each of the gaps with an appropriate idiom
from the panel below.
bury the hatchet on the grapevine redtape
Scot free raining cats and dogs eager beaver

1. I have heard that he has been appointed as a Judge.
2. It became cloudy and started .
3. The Defendant got off .
4. The new lawyer works very hard, he’s an .
5. They stopped arguing and agreed to .
6. The civil service is sometimes said to be full of .
Part 3  Law bulletin
142
There are a number of examples of comparatives and superlatives in the text. The following
are examples of superlatives:
‘... the worst-struck practice areas ...’ and ‘We do the best we can’.
TASK 1
Use the superlatives from the box below to complete the following phrases.
Exercise 9 – comparatives and superlatives
fastest highest most least
1. China has the amount of foreign domestic investment (FDI) in the world.
2. The lucrative market is Manila.
3. The lucrative market is China.
4. China has become one of the world’s moving economies.
The following is an example of a comparative:
‘Resources should be directed to areas with stronger client demand.’
TASK 2
Use the comparatives from the box below to complete the following sentences. (Note that
some words in the box may be required more than once whereas others may not be required.)
more bigger stronger closer
1. Hong Kong is part of a jigsaw.
2. Economic conditions have made decisions about where to invest difficult.
3. The business and regulatory environment is developed within sophisticated
markets.
4. Some law firms are directing resources to areas with client demand.
Note that ‘as’ can be used to compare two similars. E.g. ‘Tokyo is as expensive as London.’ It can also be
used negatively. E.g. ‘Regional law firms don’t usually have as many branch offices as the larger city firms.’
Chapter 11  Law bulletin
143
Text 4 – international litigation
Read the following text then complete the exercises which follow.
SHOPPING AROUND
THE ALLURE OF SUBSTANTIAL DAMAGES HAS PROMPTED MANY
CLAIMANTS TO SCOUR THE GLOBE FOR THE MOST
ADVANTAGEOUS ARENA IN WHICH TO FIGHT THEIR LEGAL
BATTLES, REPORTS NIGEL HANSON
Contingency fees, jury trials for all civil cases and the chance to win substantial
punitive damages are just some of the advantages of litigating in the US
As globalisation shrinks the world, lawyers are increasingly shopping around for the
best forum for their clients’ litigation. Claimants who play their cards right can scoop
greater damages, while expense and frustration await those unaware of the vagaries of
international law.
City solicitors say the recent collapse of multinationals, such as Italian dairy giant
Parmalat, has created opportunities, particularly for US firms, as global investors
scramble to protect their interests – usually by joining class actions in the US.
Meanwhile, the recent decision in David Van Der Velde (deceased) v Philip Morris has
driven home the limitations of forum shopping for individual litigants (see [2004]
Gazette, 5 February, 6).
The claim was brought by Gabriella Van Der Velde, whose husband’s illness and
death were allegedly caused by smoking cigarettes manufactured and sold by US tobacco
company Philip Morris.
Although her husband lived all his life in England, she tried to sue in the US, where
higher damages are available.
A New York district court decided that the US was not the appropriate
jurisdiction – forum non conveniens – because England had the ‘most significant factual
relationship’ to the litigation. Her shopping sortie failed, but it highlighted the trend
for seeking an ideal forum abroad.
Adam Johnson, a litigation partner at City firm Herbert Smith, says the US has long
been considered a favourable forum for claimants, particularly in personal injury (PI)
cases.
Contingency fees, jury trials for all civil cases and the chance to win substantial
punitive damages – often awarded as multiples of any compensatory damages – are just
some of the advantages.
In addition, US discovery rules give claimants wider pre-trial disclosure, increasing
pressure on defendants to settle.
Mr Johnson says: ‘In the US, you have to give full disclosure of documents and oral
discovery for witnesses through depositions.
‘All potentially relevant witnesses are subjected to extensive cross-examination by
the claimant’s lawyers to fish around for evidence that might be relevant. All these
things make litigation in the US very attractive for claimants and very unattractive for
defendants, and this is what gives rise to forum shopping.’
Conversely, he says Italy is often considered a good place to defend a case because
bureaucratic delays may postpone the outcome for years.

Part 3  Law bulletin
144
Mr Johnson says more forum shopping has emerged in the wake of the financial
crises engulfing Enron, Worldcom and Parmalat.
US law firms such as Milberg Weiss now specialise in securities claims on behalf of
disgruntled investors. ‘They will set up class actions, typically brought in New York,
and invite investors from around the world to join in,’ says Mr Johnson. ‘Effectively, it’s
inviting people to forum-shop in America.’
Jeremy Sharman, a litigation partner at London-based intellectual property specialists
Bird & Bird, says forum shopping can deliver specific procedural advantages.
He explains: ‘In some countries, there’s no obligation to produce any damaging documents.
That’s completely different from the UK. It may have an impact in cases where
you didn’t want certain documents to come to light.’
Defamation is a growth area for the cross-border shoppers. Dan Tench, a partner in
the media litigation department at London firm Olswang, says the recent proliferation
in international claims is largely the result of the impact of Internet publishing, combined
with political developments such as the 11 September 2001 terrorist attacks in the
US and the fragmentation of the former Soviet Union.
The case of Gutnick v Dow Jones & Co (see [2003] Gazette, 25 April, 6) confirmed that a
businessman allegedly defamed in an article published by the Wall Street Journal online
was allowed to take proceedings in Australia against the Web site’s US-based publisher,
Dow Jones, because several of the Web site’s subscribers lived there.
In addition to the impetus from Internet cases, the press has recently published allegedly
defamatory stories linking prominent Arabs with al-Qaeda, and Russian businessmen
with corruption and arms dealing.
Many such cases, says Mr Tench, have been litigated in London because, in contrast
with PI, England is a better forum for defamation claims than most others, notably the
US.
Moreover, many of the world’s newspapers are published in London, providing a
necessary jurisdictional connection.
Suing for defamation in the US is notoriously difficult because defendants are protected
by the first amendment of the US constitution – which protects free speech – and
the so-called Sullivan defence, which requires public figures to prove actual malice.
Mr Tench says: ‘These are the factors that are driving the international claim. Our
regime in England and Wales is still pretty favourable to claimants. We don’t have the
broad, "public figure" defence.
‘I think people also feel there is perhaps more reliability or predictability here than in
some other jurisdictions, such as France.’
But Mr Tench adds that while libel clients are flocking to London, they need to be
sure that any judgment obtained will be enforceable where it matters.
‘There is no point in being able to bring a defamation case in England but not being
able to get enforcement abroad,’ he says.
In a case in 1995, a US court in Maryland reviewed sceptically the development of
English libel law down the centuries before refusing to enforce a defamation judgment
obtained in London on policy grounds. Mr Tench says it shows US judges’ ‘uneasiness’
about English law’s comparatively pro-claimant approach.
Forum shopping also pays dividends in intellectual property (IP) cases.
Until about 2010, when it is expected that a unified European Union (EU) patent system
will be introduced, the EU’s treatment of patents looks set to remain fragmented.
Clive Thorne, an IP partner at City firm Denton Wilde Sapte, says that under the existing
European patent convention, each EU member state’s approach to patent litigation
is different.
‘The interesting thing is that courts in each member state of the EU jurisdiction can,
and do, reach different decisions on the validity of a patent,’ he says.
Chapter 11  Law bulletin
145
Differences also arise over cost, speed and remedies. ‘Germany is very
expensive – you have to pay a very significant court fee up front,’ Mr Thorne says.
‘Some say the UK is expensive, but I’m not convinced. Reforms brought in by the
patent judges have got it running very smoothly and efficiently, although it is perhaps
a little more expensive litigating here than in Holland.’
Dutch courts are far more likely than others to grant wide-reaching injunctive relief,
intended to be enforceable in other jurisdictions.
Gill Doran, head of family law at City firm Withers, says choice of jurisdiction can affect
a financial settlement following divorce. Scandinavian countries, for example, have
no concept of spousal maintenance.
Ms Doran says: ‘I can think of one example where a husband definitely started proceedings
in Sweden because that was a favourable jurisdiction to him compared with
England, where maintenance is payable.’
Pre-empting the other side by starting proceedings in a chosen forum can be a decisive
factor, particularly since the implementation of a convention known widely as
‘Brussels II’, which requires the court first seized of certain actions to try them to the
exclusion of others.
Many clients would be unaware, Ms Doran adds, that a pre-nuptial agreement
signed in New York has full force there but would be given much less weight in England
should the couple emigrate.
‘Forum shopping can make a huge difference,’ she says. ‘Normally, it has to be
thought about a long way ahead to get the most advantage. It often requires someone
going home for some period of time to fulfil the requirements and benefits of their own
jurisdiction.
‘It sounds incredibly calculated, but it is jurisdiction shopping – or jurisdiction
planning.’
However, tactical awareness can mean the difference between keeping and losing
children. Marcus Dearle, another partner at Withers, says potential surrogate mothers
who visit California are often ‘blissfully ignorant’ that their surrogacy contract will be
fully binding there and they can be forced to give up the child they are carrying by the
courts.
In England and Wales, however, a surrogate mother who wants to keep the baby
immediately after giving birth is likely to be allowed to do so.
Forum shopping, in brief, is something nobody can afford to overlook. As Mr Dearle
says: ‘It is potentially big business. Savings or gains amounting to millions of pounds
can be made. Modern telecommunications, globalisation and cheaper travel have made
the world a much smaller place.
‘Lawyers and their clients will increasingly need to be internationally aware of the
concept in the 21st century.’
Nigel Hanson: Gazette, Vol. 101, No. 9, 4 March 2004, pp. 10 – 11.
The infinitive is the basic form of a verb. A gerund is usually a verb used as a noun ending
in ‘ing’.
Verbs which can be followed by infinitives include:
Exercise 10 – gerunds and infinitives
afford agree appear arrange ask attempt begin choose
dare decide expect fail forget happen intend manage
neglect offer prepare pretend promise refuse
admit avoid consider delay detest dislike endure enjoy
escape finish forgive imagine mention resist suggest understand
Verbs which can be followed by the gerund ‘ing’ form include:
like love hate prefer continue try
Verbs which can be followed by either gerunds or infinitives include:
Complete the following summary of the text by inserting in each blank space the appropriate
gerund or infinitive form of the words in brackets.
TEXT SUMMARY
Lawyers now consider [1] (shop around) when [2] (deal) with
litigation cases. They are sometimes provided with a choice as to which country
[3] (take) a case to. Solicitors sometimes suggest for instance
[4] (bring) a class action in New York. Solicitors usually prefer however to
[5] __________ (starting) a defamation case in the UK because [6] (sue) for
defamation in the US is usually more difficult.
Discourse markers are used to connect sentences and to indicate additional information.
Legal English uses a number of discourse markers in this way with words such as:
‘moreover’; ‘furthermore’; ‘further or alternatively’ etc.
Discourse markers can usually be placed in various positions within a sentence and can be
used for a variety of specific purposes, including to: focus the reader on a particular issue,
contrast issues or ideas, provide emphasis or to structure information.
Exercise 11 – discourse markers
146
Part 3  Law bulletin
There are a significant number of examples of discourse markers being used in these ways
throughout the text. For instance:
 Cause and effect: ‘As globalisation shrinks the world, lawyers are increasingly shopping
around ...’
 Contrast: ‘Although her husband lived all his life in England, she tried to sue in the US ...’
 Addition: ‘In addition, US discovery rules give Claimants wider pre-trial disclosure ...’
Further typical discourse markers in legal English include:
 with reference to; regarding; as regards (for focusing and linking)
 firstly; to begin with; finally (for structuring)
 as a result; therefore; consequently (for sequencing in a logical order)
Complete the following sentences by selecting appropriate discourse markers from the panel
below.
1. it is hereby agreed that this amount will be in full and final settlement.
2. I would like to introduce the main speaker.
3. It will not be necessary to take this matter any further.
4. The Claimant is a wealthy man of the damages awarded to him.
5. Damages awards are usually higher in US courts. it may be more
convenient to issue legal proceedings in England.
6. He is a good barrister. He is not popular with colleagues in chambers.
Chapter 11  Law bulletin
147
INDIVIDUAL EXERCISE
1. If you are working on your own, prepare a short letter of advice to a client explaining the main
issues to be considered when deciding which country to commence legal proceedings in.
2. Read the Group Exercise below. Write an opinion on the four issues indicated by bulletpoints.
Discuss this opinion with a colleague or friend.
GROUP EXERCISE
1. Work in pairs, discussing your views and opinions on the relative merits and disadvantages
of the UK and US court systems. Consider for instance issues such as:
 Should US courts continue to award very large punitive awards (some of which amount to
billions of dollars). Are these awards in the public interest?
 Should English courts award punitive damages?
Exercise 12 – discussion

however as a result to begin with / firstly
therefore furthermore on the other hand
 Is it right that individuals should be able to ‘shop around’ internationally to find the most
financially advantageous legal jurisdiction in which to bring their claims?
 Should contingency fees (arrangements whereby a lawyer works on a no win – no fee
basis and takes a percentage of the damages, often 25%, if the claim is successful) be
permitted?
2. Prepare and make a presentation either individually or in pairs to the rest of your group on
‘The future of international litigation’. (Address issues such as whether you think that
issuing court proceedings in other countries will become an increasing trend, which areas
of legal practice will be most affected and why.)

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