Solo: So what?

In earlier articles, I have pointed out to all readers who are not familiar with the Swiss civil procedural system that the size of a law firm is, save for rare exceptions, not an issue when it comes to being represented by counsel in commercial litigations before Swiss courts. I have explained the legal and technological reasons for this in two LinkedIn-contributions dated 15 January 2018 and 26 January 2018, respectively.

In this new article, I would like to address a specific issue in the above-mentioned context, triggered by the following personal experience: Last year, I had the privilege of participating in a so-called beauty contest for an interesting and, at least potentially, quite important mandate. During the relevant meeting, the general counsel (GC) of the bank that wished to retain a Swiss law firm for the mentioned mandate confronted me principally with his concerns about me being a solo lawyer. What happens if you have an accident or become severely ill? There are many documents to review in this mandate, can you do this alone? This was the gist of his questions.

Fortunately, I could dispel the GC’s concerns. This is what I, in essence, explained to him.

(i) Should I become ill or have an accident, which would prevent me from attending a hearing or from finishing and filing a legal brief, to give just two examples, the Swiss Civil Procedure Code (the CPC) contains provisions that deal with such events. Art. 144(2) of the CPC states, in the official English translation, that deadlines “set by the court may be extended for good reason if the request to do so is made before the period expires“. And Art. 148(1) of the CPC allows a party or his / her attorney to request a court to reschedule a deadline or a hearing (official English translation): “The court may on application grant a period of grace or summon the parties again for a new appearance provided the defaulting party shows credibly that he or she was not responsible for the default or was responsible only to a minor extent.” Consequently, absences or incapacities for a limited period of time due to illness or an accident can be dealt with by a Swiss solo commercial litigator under the CPC.

(ii) But what if you are permanently out, for example because of a fatal stroke, asked the GC. Well, irrespective of the concrete personal probability of such an event, it is, of course, true that objectively such a scenario cannot be discarded. But I explained to the GC that such an event would have a disruptive effect even if he retained a large law firm, for the following reason: Unless a client is willing to finance two senior lead counsel to handle a case together, which in my experience only very few clients are willing to do, the death or permanent incapacity of the senior lead counsel in a law firm will require a colleague on his or her level to get up to speed in the case, just as an external deputy. And every solo attorney at the Zurich Bar is obligated pursuant to the relevant Swiss code of professional conduct to have at least one deputy for the event of incapacity or death, who is registered with the Zurich Bar Association. In other words, I told the GC that should I be killed by one of the beautiful Zurich trams, there would be an excellently qualified and experienced Zurich attorney who would take over the matter.

(iii) Regarding the GC’s question related to the number of documents to be handled, I explained to him that in my opinion two situations are to be distinguished in this context. If there is an unusually important number of documents to be reviewed in a dispute, in the sense of a multiple-terabytes’ amount, there are today various companies that provide document review services to law firms. Hence, in such a situation, it is possible to retain the services of such a service provider to deal with a mountain of documents, by working together with such service provider as a commercial disputes lawyer works together with, depending on the matter, technical or forensic accounting experts, for instance. The situation is different if the number of relevant documents is within the realm of what is usual in complex commercial litigations or arbitrations, in the sense of several shelves filled with file folders, to illustrate such amount. In such a situation it would, based on my experience, be a mistake to delegate the review of such documents to less experienced colleagues. As the experienced disputes lawyer knows, most cases are not decided by highly complex legal issues but by the facts. Therefore, the very careful studying of all the relevant case information is absolutely crucial and at the heart of the development of a case. And in this context, it is essential to pay attention to details and to consider all interrelations and connections. For example, just the fact to whom an e-mail was sent, in other words, which persons were on an e-mail distribution list (bc or cc), may play a decisive role in a case. Not spotting such details can have a significant negative impact on a case, and it needs practice and experience to develop the skills required in this context. In my experience, it is, as mentioned, therefore not recommended that disputes lawyers do not study all relevant documents in detail themselves, but delegate this to less experienced colleagues.

To sum up, there are, of course, monster cases that a solo commercial disputes lawyer cannot handle, even under the specific circumstances in Switzerland. For example, if the Swiss financial regulator FINMA wishes to retain an independent investigation agent to turn one of the big Swiss commercial banks upside down, and this in a short timeframe, including multiple and, at least partially, parallel depositions, then a solo practitioner would not be an appropriate choice for such a mandate. But apart from such exceptional situations, commercial disputes in Switzerland can be handled very well by solo attorneys, for the reasons discussed above (and the reasons discussed in my above-mentioned LinkedIn-contributions dated 15 January 2018 and 26 January 2018, respectively).

Philipp H. Haberbeck, Zurich, 9 March 2020 (www.haberbeck.ch)

The information contained in this post is for general informational purposes only and is not intended to constitute legal advice. Readers of this post should not take any actions or decisions without seeking specific legal advice. Any mandate is subject to the full execution of an engagement letter.

Rechtsgebiete: Allgemeines Vertragsrecht