As a litigation lawyer, Michael Böhme’s focus lies on the institutions of traditional dispute resolution and in particular the courts. The modern courts are meanwhile staffed with well educated, experienced and service orientated judges and clerks. Michael says: “They offer swift quality professional procedures and there is always a review procedure through appeal. At least in this country, I prefer courts to arbitration.”
He reveals to Lawyer Monthly the key behind working through litigation, discussing two methods to use during disputes.
Are there any changes in regulations you would like to see, which would help your clients and the legal sphere?
I would like to see the courts change their attitude towards a more international service entity. They could accept applications and procedures at least in English; from this, they could expand their services into neighbouring countries.
At the same time, court’s fees are far too expensive. In this country, they are the highest in Europe and quite prohibitive. In part, this is because the courts do not use the money they raise for their own funding, but use it as contribution to the national budget.
When acting as legal counsel, how have your many years in practice helped prevent possible disputes? What do you think is key to help clients succeed in or avoid disputes?
si vis pacem, para bellum[1]
The question you raise is a very interesting one as my lawyer’s career was as a litigator. A litigator appears on the scene when the porcelain is already crushed and only a formal communication at court may, as a last resort, finally adjust the adverse interests.
These years of intense and formalised communication confirmed that legal disputes are rather a task of communication and convincing than tactics in the hiding of, or distracting the other party from, relevant facts or even trying to trick them. There are two main approaches to handle formal legal disputes.
One of them is to keep the information low, as sparse as possible, just enough to back the claim and then wait for the other party’s reaction; from there you react again and hope that in a meanderingly dialectic procedure, the other party may overlook important information or be distracted from the “real” legal issue. The prime aim is to convince the judge.
The other approach is a more active method to present all known facts, even anticipating potential objections, and to thoroughly argue through all relevant legal problems.
Both have their merits. The reactive approach, if you achieve a swift decision and the case is not very complicated and you are able to promptly counter react to any unforeseen reactions.
But contrary to the intentions, such procedures tend to develop into lengthy to-and-fro applications and in the end, you neither know what comes next, when it will end, or if the other party has not already anyway looked through your secret strategies.
The active approach requires much more preparation and tedious fact-checking in advance. The initial application is manifold, more extensive and a happy win by surprise cannot be expected; the aim is to convince both the other party and the judge. But the effort usually pays-off and the dispute swiftly turns into a rational matter of discussion of fact, aiming at a solution and a settlement that both parties accept. I even experienced cases where the other party accepted at a very early stage of the procedure.
Experience has shown, that particularly in large cases, the active approach is far more effective in both, the achievements and the acceptance of such achievements.
If you convince the judge, you get a judgement; if you convince the other party, you will get a solution.
Further experience has shown, that the same principles apply for out of court negotiations.
Meandering exchanges of reactive arguments are inefficient and likely to end in court, just to be repeated.
It is good strategy to show the other party respect and to argue your case as thoroughly and transparent as possible. Instead of distracting from problems on the clients’ side, prepare their solution. Draft all the papers in a way that they might be reused in a potential follow-up procedure.
At the same time keep the pace and do not accept delay. If it is announced to escalate the dispute, do it; but never refuse talks with the other party.
What considerations must clients make when dealing with international parties and what are the common misconceptions, which can lead to disputes?
In dealing with international parties, it is important to avoid misunderstandings as to the meaning of legal terms. Legal terms from different jurisdictions rarely have the same meaning, even if their wording is similar or they sound similar. Dictionaries cannot be relied on to give reliable translations even if they appear to have the same meaning as in the original language.
In such situations, it is advisable to use plain and simple language, at least in the first stage of the negotiations and to avoid any legal terms; explain exactly what you mean, even if you are convinced that you would understand a foreign legal term properly.
Once the language of the contract is determined, make sure that legal terms – if they cannot be avoided - are only from the jurisdiction of the contract language. Even then, make sure that the language is clear enough that the other party will understand the meaning of the term, once the contract is signed.
Another common misconception is that the law is the same in every country, although laid down in different articles of different statues. This appears even more frequent if the legal cultures involved are closely related, in particular, if the same written and spoken language is used.
Dr. Michael Böhme
A - 1010 Wien, Falkestraße 1
tel: +43/1/512 31 00-36
m.boehme@breyer-boehme-voithofer.at
[1] if you want peace, prepare for war
