Kara Sears
Aspiring lawyers, especially solicitors, are often faced with the choice of specialising in either contentious or non-contentious legal work. Contentious work involves some form of dispute or litigation, which can include mediation, arbitration, or settlement negotiations. On the other hand, non-contentious work does not involve disputes and is often transactional or advisory in nature, focusing on deal-making and drafting contracts. While the distinction between the two types of work is important for solicitors to understand during their early careers, there may be some overlap, and many solicitors have successful careers that incorporate aspects of both contentious and non-contentious law.
Characteristics of contentious and non-contentious law
| Characteristics | Contentious Law | Non-Contentious Law |
|---|---|---|
| Definition | Involves some form of dispute | Does not involve a dispute |
| Litigation | Usually involves litigation | Does not involve litigation |
| Work | Long-drawn | More regular instructions |
| Work Environment | Requires resilience | Allows for building longer-lasting client relationships |
| Barristers | Commonly associated with barristers | Not commonly associated with barristers |
| Examples | Crime, Family, Employment, Civil Litigation, Commercial Litigation, Shipping (Wet), Construction, Immigration, Personal Injury and Contentious Probate | Conveyancing, Commercial Property, Corporate Finance, Corporate Commercial, Shipping (Dry), Aviation, Energy, Commercial Contracts, Wills & Probate |
| Funding | Contingency Fee Agreements not allowed | Contingency Fee Agreements allowed |
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What You'll Learn
Dispute resolution methods
Mediation
Mediation involves a neutral third party who helps the disputants reach a consensus. Mediators use a structured approach to facilitate an agreement between the parties, but they do not make decisions for either party. Mediation is typically voluntary, and the process is often sustainable, confidential, and non-binding. It is less formal than arbitration or litigation and does not involve a judge, jury, or courtroom proceedings.
Arbitration
Arbitration is a private and informal method of dispute resolution where a neutral third party, known as an arbitrator, hears evidence from both sides and makes a binding decision to resolve the dispute. Arbitrators are often lawyers, but they can also be accountants or retired judges. The disputants can negotiate aspects of the arbitration process, such as the presence of lawyers and the standards of evidence. Arbitration is generally more affordable than litigation and can offer a speedy resolution.
Litigation
Litigation is a formal process governed by rules of evidence and procedure. It often involves lawyers and may lead to settlement agreements during the pretrial period. The outcome of litigation is decided by an impartial judge and/or jury, and the verdict is binding. Both parties have the right to appeal the judgment to a higher court. Litigation can be more expensive compared to mediation or arbitration.
Negotiation
Negotiation is a less formal approach where parties identify an issue and meet to resolve it. It affords flexibility in determining the solution and can be an effective alternative to litigation when parties are willing to work together.
Collaborative Law
Collaborative law is a consensual process where parties attempt to reach an agreement through collaboration. It can be used as an alternative dispute resolution method (ADR) to resolve conflicts outside of court.
These dispute resolution methods offer different advantages and can be chosen based on the specific circumstances and nature of the dispute.
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Litigation and non-litigation
Non-contentious work relates to transactions and deals between one or multiple parties, such as the sale or purchase of a house, drafting contracts, and corporate finance matters. It involves negotiating and drafting contracts, as well as providing advisory services. Non-contentious seats in areas like corporate law, real estate, and commercial transactions offer a more stable environment for building long-lasting client relationships and handling regular instructions. This type of work suits individuals who enjoy interacting with clients and addressing their queries.
Contentious work, on the other hand, involves legal disputes that are resolved through litigation or alternative methods. Examples include commercial and regulatory disputes, employment law, and family law. Contentious probate, for instance, deals with disputes over the administration of someone's estate after their death, including challenges to the validity of a will. This type of work requires resilience as cases can extend over long periods.
While the distinction between litigation and non-litigation matters is fundamental to the contentious-non-contentious divide, it is important to note that some non-contentious areas, such as wills and probate, can have contentious aspects. Additionally, work done on potential litigation matters is considered non-contentious until proceedings are commenced. Once the matter is issued before a court, all the work, including pre-issue work, becomes contentious.
The contentious-non-contentious distinction is particularly significant for solicitors during their early careers as it guides their choices regarding specialisation and the type of legal work they pursue. However, it is worth noting that some commentators consider the distinction to be outdated and serving no purpose in the current legal landscape. Nonetheless, aspiring lawyers, especially solicitors, should understand this distinction as it remains relevant in legal practice and can impact their career paths.
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Barristers and solicitors
The difference between contentious and non-contentious law is important for aspiring barristers and solicitors to understand, as they will need to make choices that are guided by this distinction.
Barristers
Barristers are qualified legal professionals who offer specialist advice and represent and defend their clients in court or at a tribunal. They mostly specialise in courtroom advocacy and litigation, with tasks including arguing cases in courts and tribunals, drafting legal pleadings, researching the law, and giving legal opinions. Barristers are usually approached by solicitors to speak in court on their behalf. While the work of a barrister tends to be contentious by nature, they can also do non-contentious work.
Solicitors
Solicitors are qualified legal practitioners who prepare legal documentation, such as conveyancing, drawing up wills, and dealing with probate, divorce, or other family work. They also provide specialist legal advice on contentious and non-contentious work to their clients on a variety of areas of law. Solicitors tend to perform most of their legal work in a law firm or office setting.
Contentious and Non-Contentious Law
Contentious law involves some form of dispute between two or more parties, often resulting in litigation, mediation, arbitration, or other forms of alternative dispute resolution. Contentious matters can run for longer periods of time and require resilience. Non-contentious law, on the other hand, does not involve a dispute and focuses on deal and transaction matters, advisory work, and transactional legal work. It often involves drafting contracts and building longer-lasting client relationships.
Choosing Between Contentious and Non-Contentious Law
Aspiring lawyers, especially solicitors, are often encouraged to specialise in either contentious or non-contentious law. This choice is usually made as they approach qualification and apply for specific roles. However, it is important to note that there is no obligation to "pick a side," as both areas provide invaluable skills and many solicitors have successful careers that incorporate aspects of both practices. During their training, lawyers will typically be exposed to both contentious and non-contentious work to help them make an informed decision based on their interests, strengths, and preferred work environment.
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Advisory and transactional work
Non-contentious work often involves deal-oriented negotiations and close reading and legal analysis of a client's case. It generally consists of more regular instructions and the ability to build longer-lasting client relationships. This type of work is often carried out by solicitors, who may be approached by barristers to prepare for a case that involves contentious work.
Contentious work, on the other hand, involves some form of dispute or litigation, though this may be settled out of court through mediation, arbitration, or the exchange of written settlement offers. Contentious work is subject to rapid changes and development and often requires resilience as the work may extend over a long period.
While the two types of work are distinct, there is some overlap. For example, non-contentious areas of law such as wills and probate can have contentious aspects, such as contested will disputes. Similarly, an employment seat can involve a mix of both contentious and non-contentious work, with disputes related to dismissals and harassment, as well as advisory work.
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Rules and funding
Rules
Contentious work is often litigation-focused, whereas non-contentious work involves close reading and legal analysis of a client's case. Contentious work involves resilience as it extends over a long period, and rapid changes and developments are common. Non-contentious work involves drafting contracts and a mix of advisory work.
Funding
There are different rules concerning the funding of contentious and non-contentious work. Contingency Fee Agreements are allowed in non-contentious work but are not permitted in contentious work. This distinction is due to the Solicitors Act 1974, which states that in non-contentious business, the agreement may provide for the remuneration of the solicitor by a gross sum, hourly rate, commission, percentage, salary, or otherwise. However, in the section dealing with contentious business, the Act does not include the words "a commission or percentage".
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Frequently asked questions
Contentious law involves some form of dispute between two or more parties. This often means litigation, but could also include mediation, arbitration, or other methods of alternative dispute resolution. Contentious work is subject to rapid changes and development.
Non-contentious law relates to transactions or deals occurring between one or more parties, such as the sale or purchase of a house. It does not involve a dispute, but there is an element of negotiation. Non-contentious work generally consists of more regular instructions and the ability to build longer-lasting client relationships.
Examples of contentious law include Crime, Family, Employment, Civil Litigation, Commercial Litigation, and Personal Injury. Examples of non-contentious law include Conveyancing, Commercial Property, Corporate Finance, Corporate Commercial, and Wills & Probate.
