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Though they can'talways get it right

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Putting my wig carefully to one side, I blow the dust off the parchment and take up my quill pen to respond to Mr Salisbury (Letters, aj 28.5.98 and 4.6.98).

'50% of lawyers lose their cases!' This headline (it is said) so startled a newspaper editor that he changed it to '5%'. In doing so he misunderstood the inevitable statistical consequence of our adversarial system - that in any dispute there can only be one winner. Where disputes are complicated by claim and counterclaim, however, as with most buildings disputes, the distinction between winner and loser is less clear. Most construction lawyers spend their time trying to work out what was supposed to happen, what went wrong and how best to resolve matters. In the main they succeed: these days it is an exceptional case which proceeds to judgment. There are greater obstacles to settlement than the 'spun gossamer, exaggeration and rubbish' Mr Salisbury believes to be the lawyers' contribution. How would he say that accurately predicted failure to an intransigent client should affect their score sheets?

A judge, arbitrator or adjudicator is just as likely to reach a wrong answer, that is, one that is unpopular with one party and successfully challenged, whatever his or her discipline. As we have seen, even the House of Lords gets it wrong sometimes. One would have thought that Mr Salisbury would want to join forces with his fellow problem-solvers to save the time, energy and resources currently wasted on disputes. To do so successfully, however, he really must try to put aside his stereotypes.


Temple, London EC4

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