Canada: Specialization: Considerations for the Individual Litigator

Article by Barry Leon and Donna Wannop*

Prepared for the International Bar Association, October 2004.

A great deal has been said and written on the subject of specialization in the practice of law. When it comes to litigation, litigators and clients raise strong and persuasive arguments both for and against the pursuit of a specialized practice.

For many litigators, specialization runs contrary to their inherent desire and self-image – often born in their law school days – to be the all-round litigator (barrister/counsel/advocate). They strive to develop the skills of a truly great advocate. And after all, many legends of the courtroom were generalists; their specialty was advocacy. So these litigators believe, and in many cases correctly, that once briefed on any type of matter, they can apply their talents as a litigator to that case. They can learn the narrow subject matter of the case in intimate detail, and then when the case is over, they can clear their heads of the matter and move on to the next one. They do not want to narrow their practices because they fear missing out on different types of interesting cases.

Notwithstanding the traditional approach to litigation, it is impossible to ignore the market factors that are exerting increasing pressure on litigation lawyers to specialize.

There is an increasing need for litigators to plan their careers, to have shorter- and longer-term objectives, and to develop and implement tactics to achieve these objectives. Planning involves making choices – deciding what he or she does not want in a career and eliminating certain paths. The more that is eliminated, the greater the concentration of the litigator’s practice. In the final analysis, whether specialization is the right way to go depends on a range of factors, in particular, the market in question, the firm in question and the individual lawyer who is making the decision.

Whether to specialize may not, however, be the real question. The real question, at least for some litigators, may be the extent to which he or she should specialize. Traditionally, litigators have specialized geographically, often more so than transactional lawyers, because of appearance rights in courts, licensing restrictions, and differences in legal systems and in court procedures and cultures. Litigators have also specialized by broad areas of the law: civil, labour, family/matrimonial and commercial. More recently, litigators’ specialization has come to mean, at least in some jurisdictions, both industry specialization (e.g., telecom, construction, securities dealers) and narrower bands within a specialty such as commercial law. Examples of these commercial bands include tax, securities, trade and bankruptcy.

This paper provides an overview of the factors that individual litigators may want to consider in deciding whether, how much and how to specialize. The primary focus is on the individual lawyer, and his or her decision-making processes. Client and market perceptions on specialization, and the firm’s strategic decisions about specialization, will constrain and influence the individual lawyer’s decision making about his or her career.

Litigation is itself a specialty. That is so whether or not the litigator’s practice includes advocacy in court . By specialization, we are talking about a further narrowing and focus of the litigator’s practice. The extent of this specialization can vary. It could mean focusing solely on one aspect of a litigator’s function in the particular jurisdiction. Or it could mean developing a depth of knowledge, experience and profile in one thing, but involving only part of the litigator’s time. Depending on the nature of that thing, the litigator may have the capacity to develop more than one focus.

The litigator might increase his or her concentration in one area over time. Or the litigator might shift focuses over time.

Specialization does not necessarily mean focusing on the most complex or the most profitable area. One could specialize in any type of work, industry or law by getting more experience than the average litigator and a reputation in that type of work, industry or law.

One reason that some litigators specialize is that they have an interest in the particular subject matter or industry. As part of the career planning process, a litigator will want to choose a focus or specialty that he or she is especially interested in.

Clients look increasingly for efficiency and cost-effectiveness. They want their matters to be dealt with and resolved quickly. With high quality among law firms assumed and all other things usually assumed to be equal (apart perhaps from price), clients seek to minimize the time and other costly resources that their outside counsel apply to their matters. Experience with specific industries or businesses, or with specific matters, is seen to make litigation lawyers efficient. Relevant experience also creates efficiencies at the client end: retaining a lawyer with experience in the relevant area means the client will need to spend less time explaining and familiarizing the lawyer with the business and the regulatory environment. The lawyer who is familiar with the client’s industry, with the relevant legislation and regulations, and with the kinds of legal and business issues facing companies that operate in the specific environment in which the client operates will be perceived as more efficient than a lawyer who does not have that same experience and background.

Specialization facilitates the development of a focused marketing strategy. It enables the litigator to identify clearly defined market segments with specific needs. Targeting clearly and narrowly defined markets makes it easier to develop positioning strategies, communication strategies and tactical marketing plans.

Specialization also offers other marketing advantages: it provides a litigator with a basis on which to distinguish himself or herself from other litigators. Increasingly, one of the main criteria that clients apply when selecting litigation lawyers is specialized expertise – it constitutes a tangible differentiator. Clients in general, and potential clients in particular (who are not yet in a position to evaluate the "experiential" aspects of the lawyer’s client service), have considerable difficulty recognizing and appreciating other differences between competing lawyers and firms (apart from such things as price).

The individual at the client organization who is responsible for selecting an outside litigator is personally at risk in making the litigator-hiring decision. If things go badly, that person will need to explain why that happened and why a litigator with experience and a reputation in the field was not retained – if in fact such a litigator was not retained.

To minimize the risk, most people tend to select a litigator with specialized expertise and – perhaps even more important – with a reputation for having that expertise. There is an assumption that a specialist is likely to do a better job than a generalist. This is especially true for a specialist who has a well-established reputation in the specific area in question. Selecting a specialist allows the decision maker to protect himself or herself – particularly important if it turns out that the result is unfavourable or the matter is somehow mismanaged by the lawyer retained.

Marketing poses unique challenges for litigators, who frequently have limited success with some of the more traditional marketing strategies that tend to work well for transactional lawyers. Most litigators have considerable difficulty identifying potential sources of new work. Individuals and businesses cannot generally predict or anticipate their litigation needs, and therefore, litigators typically cannot identify potential clients with any degree of certainty. As a result, strategies that revolve around strengthening relationships with past and current clients, and cultivating new relationships with potential clients may offer relatively low returns.

Given that there may be a limit on how much work a general litigator can generate by focusing on cultivating relationships with clients, developing a profile takes on an added significance for the litigator. Profile and reputation can prompt a potential client to contact a litigator when the need arises and to hire the litigator once interviewed. It is easier to develop a profile if the litigator is associated with a specialized area of practice.

For the reasons discussed above, litigators sometimes have difficulty generating work directly from clients, and often rely more heavily on generating work indirectly – that is, through referrals.

Most professionals are more inclined to refer other professionals whom they do not regard as their competitors, and lawyers are no exception. The more narrowly a litigator defines his or her practice – in other words, the greater the degree of specialization – the broader the base of potential referral sources, other litigators included.

In most industries and businesses, there is an escalating trend toward establishing and growing in-house legal departments. In-house counsel are typically responsible for managing legal issues and allocating work to outside law firms when appropriate and required (i.e., usually when the work cannot be done internally). In-house counsel increasingly handle general and more routine matters – including litigation – internally, looking outside only when the stakes are high, when issues are unusual, when matters are complex or when matters require greater resources than are available internally. In these circumstances, it makes sense for the in-house lawyer to seek a specialist.

As noted earlier, geography has historically defined the way most litigators specialize. But technology, transportation, the expansion of international arbitration and the globalization of corporate clients may have changed the historical market definitions for litigators. A litigator in a small town can have a global practice in a narrow field of expertise. Certainly it is easier to do today than even a few short years ago. Location may not be nearly as important as it once was. By concentrating, at least in certain kinds of practices, the litigator’s geographic market may broaden.

In some fields, a litigator can command higher fees simply by being a specialist. Enhanced profitability could be a driver toward specialization. However, in some fields, specialization is part of the "table stakes" – the litigator needs to be a specialist to be in the game, for example, for insurance defence work. In other fields, specialization may produce volume advantages (and profitability advantages), but not necessarily higher rates.

The general trend that increasingly favours law firms and lawyers with specialized expertise means that the bar is continually being raised and that litigators who do not have a specialization are more often competing against those who do – both in the marketplace and in court.

It is certainly true that specialization will result in missed opportunities for attractive, interesting and profitable work that falls outside the scope of the litigator’s specialty. This may happen by chance or by design: an opportunity may be lost because the potential client doesn’t perceive the specialist to be an appropriate or a qualified choice for work outside his or her known area of expertise, or the specialist may decide to decline work outside his or her chosen area. The question is whether the development of more work and better work in the designated area outweighs the resulting lost opportunities.

A specialist is more vulnerable than a generalist. Without the advantages of a mixed book of litigation business, the practice of a specialist can disappear literally overnight for reasons well beyond the litigator’s control. This may happen as a result of any number of things: for example, major developments or changes in the economy or in the relevant industry, or changes in (or the repeal of) relevant legislation and regulatory regimes. Developments at competing law firms and indeed within the lawyer’s own firm may also have a profound impact on a specialist’s practice.

Nothing is forever, and what is considered a viable area of specialization may lose its appeal over time. The specialist’s interests may change, or, as discussed above, the specialty may no longer be viable or profitable to pursue. Whatever the reason, if the litigator who specializes decides to make a change, it will be more difficult to shift out of one specialty area into another, or for that matter into a more general litigation practice, than it would be to shift from a general practice into a more specialized area.

In jurisdictions where litigators are advocates in court, a litigator must develop advocacy skills. That fundamental fact has implications for specialization. It means that the litigator needs to first build a solid base of advocacy skills. A possible occupational hazard of specializing – especially specializing too early in one’s career – may be that advocacy skills are not well-developed.

If everyone working on a matter is a specialist, who is thinking about the totality? And how does the advocate develop a broad understanding of legal principles and theories, and the ability to apply the wisdom of one area to another? These are not insignificant considerations.

Being an expert in most areas does not have to become a full-time commitment. It takes less concentration to be, and to be regarded as, a specialist in a small market than in a large one. Depending on the litigator’s jurisdiction and market size, it may be possible to be an expert, and to have a reputation as such, without full-time dedication to the area. This model may enable a litigator to attain many of the benefits of specialization, while minimizing the downside that may come with a specialized practice.

The advantages and disadvantages associated with specialization must be weighed in each case by the individual lawyer. Not all practices support specialization, and not all lawyers are suited to specialized practice. Although clients increasingly look for specialized expertise, and more firms support and encourage the development of specialty practice areas, litigators are the last holdouts, and many continue to maintain their reluctance to restrict their practices. Traditional reluctance notwithstanding, it would be prudent for any litigator operating in today’s practice environment to give some serious consideration to specialization on an ongoing basis.

Footnotes

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.