Civil litigation – to decide disputes between any combination of individuals or business, government and other legal entities – is the bedrock of our common law system. Within this tradition, for well over 1,000 years, parties would ‘go to law’ to have their disputes peaceably resolved by custom and judgment – and as an alternative to ‘blood-feud’, that endless cycle of retribution and private violence. These days, within the Australian system of law and government, peaceful determination of private disputes by courts is the only legitimate avenue.
Taken as a whole, civil litigation is the predominant field of legal practice in Australia today. For context, criminal law services comprise only about 5% of legal services revenue. The extent of civil litigation tends to fluctuate with economic cycles. When society is under pressure, whether by economic recession or external shocks, then civil litigation tends to spike – along with enforcement fields of practice, such as bankruptcy and corporate insolvency.
In a Covid and post-Covid world – where contracted or expected norms and obligations are thrown out the window amongst the wreckage of massive defaults – civil litigation is a growing space within which lawyers can add real value. Lawyer job and promotion prospects are likely to tilt strongly in this direction over coming years.
The US law recruiter, Michael Page, identifies ‘complex litigation’ as the number one most promising and lucrative practice area for aspiring lawyers. This kind of litigation often arises out of large corporate collapses, class actions or where something of extremely high-value is in dispute. Since the stakes are so high, litigation is generally well funded – with many of the best lawyers engaged and comprehensive legal work performed to the highest standards.
For junior lawyers, working as part of a team on complex litigation can fast-track learning and development. Many exceptional litigators have built their careers on large-scale litigation, which can sometimes run for 5-10 years. Strong professional and personal relationships – between and amongst solicitors, barristers, judges, accountants, other professionals and any variety experts – can be forged in the heat of large, complex and long-running civil disputes.
Working in this field requires tremendous capacity for forensic attention to detail, fact-finding and technical legal proficiency. Junior lawyers learn to grasp, and then master and anticipate, the litigation landscape – with all the available twists and turns in court processes and the rules of procedure. And, for all of the long lead-time, litigators also come to experience and relish the drama and tension in the front-line trenches of public battles before judges (and perhaps juries) at trial.
But whether the disputes are large or small, civil litigators need to know more than court-craft and how to navigate litigation terrain. Some 98% of all civil disputes commenced in the court system are settled before trial. So cultivating negotiation and strategic thinking skills is essential for a litigation lawyer. Over time, lawyers learn to perceive the opportunities and threats built into the structure of different kinds of disputes – as well as a knack for finding creative solutions and breaking impossible deadlocks. There is tremendous job satisfaction in guiding clients through to a workable, negotiated resolution.
Pursuing civil litigation – especially early on under the wing of wise, experienced and unfailingly ethical supervisors and senior colleagues – can be one of the most rewarding pathways for new lawyers to follow.
