Have you heard about our Commercial Matters Podcast? It’s perfect for Project Leaders supporting complex digital transformation or IT programmes.
Our first podcast theme is IT disputes and we’ve come a long way since our first episode…
We’ve already discussed what IT disputes are, the different versions of events in IT disputes, when to crystallise an IT dispute, and how you can recover damages in an IT dispute.
In our fifth and final episode on IT disputes, we explored the 3 types of IT dispute specialists you are likely to come across.
Below we have summarised the key points from this podcast episode: The Different IT Dispute Specialists.
What Are IT Disputes?
Before we begin, here is a quick reminder of what an IT dispute means.
IT disputes are disputes (a disagreement or argument) that happen between an organisation that wants to implement an IT programme and (possibly) its suppliers who are helping deliver that IT transformation programme.
These programmes cost between £10 million and £50 million, and last anywhere between 1-4 years, so it is no wonder that disputes arise!
We have dispute resolution expertise and it is a service we offer as part of our Managed Commercial Services offering.
The Different IT Dispute Specialists
In our experience, there are 3 types of IT dispute specialists you are likely to come across.
- Commercial/Contracts managers and consultants
- Solicitors – or more commonly called lawyers
It is very common for people to refer to solicitors and barristers jointly as lawyers. However, we will keep them separate because from our perspective they do separate things, have separate roles, and have separate times in which they get involved in a dispute.
1) Commercial/Contracts Managers and Consultants
A contracts manager is someone who works client-side, so effectively they are a part of your team. They are either an in-house resource, or they could be a consultant who is drawn in to deal with the specific matter that has arisen.
What is contentious and non-contentious work?
Now, what is quite often overlooked is that contracts work typically falls under two kinds of bucket. It is either contentious work or non-contentious work. Non-contentious work is the kind of work you would do to run a procurement or agree a contract with a supplier. You’re not in a dispute with a supplier in this situation.
The other work is contentious work. This is when they are involved in tricky situations such as disputes, or a transition from one supplier to the other, or an exit from a supplier. When screening for a contracts manager it is important to bear in mind that they may not be skilled in both contentious and non-contentious work.
2) Solicitors – or more commonly called lawyers
Another dispute resolution professional is a solicitor. To become a solicitor in the UK takes a big investment of time and money. You could spend anything between 3-5 years in training, plus you also have to undertake training contracts with legal firms. As a result, it is quite difficult for a mid-career professional who’s a non-lawyer to transition themselves into becoming a solicitor.
In practical terms, this means that most lawyers are career lawyers because they’ve always been lawyers from the time they graduated. Consequently, a lot of what they believe is “commercial sense” arises from what they see their clients doing in disputes. However, because of this, it can be quite dangerous to rely on a solicitor’s advice on commercial matters.
How are solicitors different to barristers?
The role of a solicitor is predominantly to manage the case. This will include correspondence with the other side and any evidence submission to the court. But when the trial approaches and the case has to be argued in front of a judge, solicitors would usually appoint a barrister to fight their client’s case. This is because barristers are courtroom advocates and they understand what the persuasive arguments are that could swing the decision your way.
Here’s an analogy to explain the difference between a solicitor and a barrister...
You can think of your solicitor as your GP and your barrister as your specialist. The GP decides when the specialist should be engaged. But the first point of contact you would have would be with a solicitor.
We have already touched on barristers but just to summarise, barristers are great courtroom advocates. They are great at deciding what arguments to prioritise, which arguments are likely to persuade a judge, and how to defend your case when you have judicial interventions and questions.
When Should You Induct Dispute Specialists?
When to induct these professionals into your team depends on where you are in the dispute. If you were in the very early stages of a dispute you might be better off with a contracts manager because they understand the commercial sense of your organisation. Furthermore, they have sufficient legal awareness, so long as they are suitably qualified for the job.
If you put a solicitor on your side, then the other side is almost compelled to appoint a solicitor to respond and then issues can quite easily escalate. On the other hand, a contracts manager is pretty much seen as part of a team, and it is a role that most programmes would have.
Three Actions You Can Take
Here are three specific actions you can take away and apply to your digital transformation programmes.
1) Decide whether it’s a contentious or non-contentious matter
You have to be clear upfront whether you need a contracts manager for a contentious matter or a non-contentious matter as the selection criteria are very different.
Specifically, if you are looking for a commercial consultant who specialises in contentious work, as part of the screening and sifting them you’ve got to test them to see how they respond to certain situations in a programme.
These situations could be identical to the situations that you are facing or it could be a well thought out scenario. The thing you should look out for is at what point in their response do they swing over from trying to be collaborative to adversarial.
2) Be selective and judicious about when to ask for help
You should be selective and judicious about when to approach dispute specialists for help. Approaching a solicitor and/or a barrister for commercial advice is not advisable and many legal retainers tend to exclude any commercial consequences anyway.
In a similar vein, do try and guard against the tendency of approaching lawyers when the real issue is not about the advice you need. Rather, it’s about the will and the conviction to take the actions which seem necessary.
Quite often when you are flipping over from collaborative mode to an adversarial mode there’s a lot of resistance and we somehow think that approaching lawyers and other legal professionals is somehow going to bolster that confidence. That’s a very expensive way of building confidence, so try and guard against that.
3) Always keep your legal costs in check
Lastly, you should always keep your costs in check when you are dealing with legal professionals. It’s not uncommon to end up spending tens of thousands of pounds even before some kind of litigation is contemplated.
Moreover, when approaching solicitors or barristers for advice there are certain formatting techniques and logistical considerations that can considerably reduce costs. For example, you should structure your reading material for your barrister or your solicitor.
These are the kind of things a good commercial consultant will know beforehand so that you’re well prepared before reaching out to expensive legal professionals.
At Mindful, we are authorised as a licensed access client by the Bar Standards Board. This licence permits Mindful Contract Solutions to instruct the Bar directly, without the use of solicitors as is often customary, and is another way we help our clients save costs.
With this episode we are bringing our theme of IT disputes to a close. If you have any questions about what you have heard, or if there are any topics you’d like to see covered, please contact us.
The next theme will be focused on client-side teams and their importance in digital transformation programmes.