Virtual Seminar: Fight or flight – litigation or settlement? How should things be done differently in the post-COVID virtual world?

Ever since there have been disputes and judges, parties have faced the decision whether to fight to the bitter end or to settle on agreed terms.  For each party, this decision involves weighing the values and probabilities of the different possible litigation outcomes, as that party perceives them, and comparing this with the settlement that is on offer or that the party may hope to achieve via negotiation.  Of course, each party knows that the other party will make the same comparison and can try to put itself in the other’s shoes.

This process, which is as old as litigation itself, has been significantly impacted by the COVID pandemic in a number of ways.  To begin with, the economic balance of many commercial and investment relationships – particularly in sectors such as energy, construction, real estate, and travel – has been fundamentally changed to the point that parties may see an advantage in seeking legal changes to those relationships that would have been unthinkable prior to COVID.  We hosted an online seminar on “Rebalancing unbalanced contracts in COVID times: how do legal systems approach the challenge?” on 8 October 2020 (presentations and recording available here).  Second, COVID has substantially changed the nature of dispute resolution itself.  Virtual substantive hearings before courts or tribunals, once the exception, have become common.  This in itself may change each party’s perception of the likely value of fighting to the end.  Will a party’s case be helped or hindered if its counsel and witnesses are heard and questioned remotely rather than in person?  Each dispute is unique and each party will perceive this calculus differently.

The seminar addressed two important aspects of this unprecedented situation.  Firstly, the speakers discussed how a party involved in dispute resolution should assess the advantages and drawbacks of resolving the dispute remotely, rather than in person, and how this should affect the perception of the possible outcomes?  Secondly, if remote dispute resolution is the ultimately selected option, how can a party present its case in these novel conditions to the best advantage?  Each of these questions naturally feeds into the other.

 

The speakers for this seminar were:

 

Robert Hogarth (Robert Hogarth Legal Services Limited).  Robert retired from city law firm RPC in May 2018 after over 30 years as a partner handling construction and real estate disputes for owners, contractors, and insurers.  In his time, Robert won many (and also, importantly, lost some) trials and was the advocate on behalf of clients at countless mediations.

Robert has many ideas about how mediation could be made even more effective; particularly around the early involvement of the mediator to provide a process for focused preparation.  He has expertise in modelling litigation risk and has developed an application, Kwontify, that provides a solution for doing that.

Robert is a member of the Civil Mediation Council and trained with both ADR Group and the London School of Mediation.  His specialist legal knowledge includes professional negligence, PFI, outsourcing, and insurance in addition to construction and real estate.  He was on TeCSA’s panel of adjudicators from its inception until 2019.

Robert was Senior Partner of RPC from 2008 to 2014.  He was awarded Client Choice UK construction lawyer of the year in 2013 and is ranked individually as a construction lawyer in Chambers Directory.  He was Editor of Construction Law for the Insurance Industry in its second edition with Oxford University Press.

 

Robert addressed “To Zoom or not to Zoom?” Topics included:

• Who gains from a remote hearing and who loses?
• What factors does the lawyer take into account?
• How do you translate those factors into cash?
• Daniel Bernoulli 1738, Expected Value.
• Litigation as an Investment:  costs, losses, and gains.
• A simple model can be done in your head (tossing a coin).
• Complex models are best done on a computer, postulate outcomes, assess their value, and apply chances.
• Illustration comparing model with hearing in person versus hearing over Zoom.
• Wider benefits of modelling with purpose-built software.

 

Catherine Sheppard and Christine Carnell (Z-Axis).  Catherine Sheppard is a Legal Presentation Consultant who works with law firms in the UK and Europe.  Catherine has worked on numerous investor-state disputes as well as commercial litigation and arbitration, across multiple industry sectors.  Her focus is on complex disputes.  Christine Carnell works with law firms in the UK, Europe, Australia, the Middle & Far East, helping to advise on visual strategies for many complex and high-value disputes.

Z-Axis is a specialist legal presentation consultancy.  They have been creating innovative graphics and animations to help lawyers win disputes, for almost 40 years.  Matters they have supported include the World Trade Centre insurance litigation, the Deepwater Horizon litigation, Yukos v. Russian Federation, and the investigation into the October 2017 Las Vegas shooting.

Using a selection of case studies, Catherine and Christine discussed “Bridging the Distance: Visual tools for virtual hearings” and how deploying interactive visual demonstratives in online hearings (or settlement negotiations) can help combat zoom fatigue, keep audiences focused on the key points and underline the key arguments.

 

The event was chaired by Graham Coop, Partner at Volterra Fietta and former General Counsel to the Energy Charter Secretariat.  Mr Coop is qualified as a barrister and solicitor in New Zealand and as a solicitor with higher rights of audience (Civil) in England and Wales. He advises and represents companies, governments, and international organisations on international dispute resolution and public international law, with a particular focus on the energy, natural resources and infrastructure and banking sectors.  He currently represents an EU member State in relation to banking measures taken in response to developments arising out of the 2008 global financial crisis.  He has appeared as counsel, advocate, and expert before a wide range of international courts and tribunals, including the International Court of Justice, ICSID, the PCA and the ICC.  He is on the UK Attorney General’s list of public international law practitioners.

 

For any queries regarding the content of the seminar, please email graham.coop@volterrafietta.com.