Litigation plays an important role in a law firm’s suite of services, and in this first-ever ranking, we are celebrating Asia’s top 15 litigators. The lawyers named in the list have stood out based on several factors, including profiles of cases handled, client recommendations, the use of technology to minimise the impact of the COVID-19 pandemic and more.
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AJAY BHARGAVA KEITH BRANDT CAVINDER BULL, SC DOMINIC GEISER ANDI KADIR TONY DONGWOOK KANG LEONG WAI HONG LUU TIEN DZUNG ALEXANDER J. POBLADOR GAURI RASGOTRA MARTIN ROGERS DAVINDER SINGH, SC WARATHORN WONGSAWANGSIRI FRANCIS XAVIER, SC, CARB CHIE YAKURA |
Among lawyers, disputes practitioners have always been a special breed, revered for not just their presence and quick-wittedness in court, but also for their out-of-the-box strategizing to beat the odds when needed, and deliver the ideal outcome for their client. But this past year has needed them to be on the top of their game than ever before, as economies reeled under the effects of the pandemic, and even the old ways of settling disputes having to be rethought in the face of the deadly virus.
Keith Brandt, managing partner of Dentons Hong Kong, feels that dispute resolution saw a significant increase in activity in the earlier parts of 2020, with international arbitration coming to the fore on the back of the uncertainty surrounding the courts being open for business. “Sadly, significant activity can be directly attributed in some way to COVID-19, arising from the mass disruption to commercial activity due to the global pandemic,” notes Brandt. “Liquidity in the market is tight and, due to broken commitments stemming from the virus, there has been a constant demand from businesses involved in international cross-border trade for review of force majeure provisions to determine if proper grounds can be established to justify delay and/or entitlement to terminate commercial contracts.”
Also noticing the trend to arbitration is Alexander J. Poblador, founding partner and chairman of the executive committee at Poblador Bautista & Reyes Law Offices in the Philippines. He witnessed the government’s policy in favour of arbitration is the shift to arbitration tribunals as the chosen fora for the litigation of complex commercial disputes. “Clients agree to arbitration clauses in their contracts because of their perception that often, trial courts in the country do not have enough technical expertise to resolve their disputes, and that in disputes where the government is the adverse party, an arbitral tribunal consisting of private arbitrators, conducting trial in or outside the country, would be expected to render decisions impartially,” he says. “This trend has led to the growth of arbitration departments in Philippine law firms.”
Meanwhile, in Singapore, Cavinder Bull SC, CEO of Big Four law firm Drew & Napier saw a sharp increase in high-value disputes work with numerous industries under stress. “There has been a significant increase in cross-border, joint venture disputes coming out of developing countries in the region,” he notes. “This led to more litigation in the Singapore International Commercial Court (SICC) as well as the Singapore High Court. In addition, there has been an increase in insolvency-related litigation especially as the Singapore Courts have positioned themselves as a forum for insolvent corporate restructurings.”
He adds that this increase in work has been amid the COVID-19 pandemic which resulted in many disputes being heard virtually. “As a result, the past year has seen technology embraced and deployed to great effect both in the presentation of clients’ cases in Court, and in enabling collaboration between lawyers, experts, and clients who may not all be in the same place,” says Bull.
Tony Dongwook Kang, senior partner and the head of the international arbitration and litigation group at Korea’s Bae, Kim & Lee, agrees that the impact of COVID19 resulted in delays of hearings, as well as increase in virtual hearings. “Also, contact-free communication with clients became familiar and work-from-home or flexible work was routinised,” notes Kang. “These circumstances are providing increased variety of ways to have a meeting and communicate with people.”
According to Brandt, increasing numbers of businesses in distress, insolvency and bankruptcy claims will likely dominate litigation over the next 12 months. “It seems inevitable that the litigators and international arbitration lawyers in Hong Kong and regionally will have a very busy time with strong performance in 2021 and forwards,” he says. “Businesses will continue to evaluate risk and will assess whether third party funding can be used to defray lock-up of otherwise scarce and much-needed working capital for contracts that have already descended into dispute, where arbitration has been used as the mechanism of choice for resolution of conflict. Shareholder disputes, turnarounds, restructuring and insolvency practices will inevitably be busy looking at whether the new mutual assistance provisions, which came into effect in 2020 for Hong Kong and Mainland China, provide solutions that previously may not have been readily available to organisations undertaking business in the Greater China region.”
THE TECH FACTOR
One of the effects of the pandemic in just about every industry is the increased involvement of technology, and litigation is no different, with hearings becoming virtual. Lawyers interviewed for this piece have all seen the increasing use of technology in their practices.
For Brandt, the demand for increased remote hearings has been profound since access and intermit-tent closure of the courts in the spring of 2020. “International arbitration has largely paved the way, with the adoption of routine Zoom calls for procedural hearings and also, in some cases, substantive evidential hearings,” he recalls. “Since then, we have witnessed similar practices being adopted by the High Court in Hong Kong, particularly for procedural hearings where remote access has increasingly been adopted. These developments have been welcomed, although we wait for fundamental change in court practices with remote e-filings. The evolution of electronic, paperless bundles with the use of e-document search engines in international arbitration has been welcomed by the arbitration community and increasingly adopted in Hong Kong. We wait with bated breath whether, going forward, the Hong Kong courts will adopt similar international practices which have become increasingly standard. That sadly, may still be some time off.”
Similarly, the pandemic has led to the adoption of virtual hearings before Philippine courts, says Poblador, who notes, however, that it has not been as widespread as lawyers would want it to be. “In our firm, we converted and equipped one of our conference rooms to serve as a virtual hearing room where several lawyers, observing appropriate distancing, can participate in a virtual hearing together, using common audio and video systems,” he notes. “There is still room for improvement, however, in truly simulating the ‘in-court’ experience, especially the unique dynamics of face-to-face witness examinations.
The success of virtual hearings depends greatly on the speed, quality, and capacity of internet connections. This is one area that litigation practices (and courts) will have to focus more on, in the months and years to come.”
He adds that pleadings, motions, correspondence, court orders, and other papers and documents generated in the course of a case are now immediately reduced to electronic form, not only within his firm, but also by the courts themselves and opposing counsel. “Virtual, electronic, and/or online databases are thus quickly becoming the norm. These databases have greatly facilitated and improved multiple accessibility to all relevant materials in a case. However, this has entailed additional investment in the security of these databases, and other measures to protect attorney-client confidentiality,” says Poblador.
Kang focuses on the more day-to-day aspects of technology use. “The frequent usage of virtual meetings, virtual hearings are forcing users to check and compare and improve not only their computer systems but also their cameras (with instant autofocusing to speaker), microphones (with instant autofocusing to speaker; auto arrangements and distinctions of single speaker from multiple speaker etc),” he notes. “Above this, of course, we need to share materials most efficiently over the monitors of every or selected participants etc which inevitably involve high-technology. Fortunately, technology allows us to approach our clients, regardless of time and space.”
CLIENT SERVICE
With client engagement being impacted over the past few months, lawyers are also seeing their relationships with clients evolve as a result. Bull believes that as the pandemic has created a lot of uncertainty, so clients have been reaching out much more and with somewhat unique problems. “I have spent a great deal more time with clients brainstorming solutions and plotting a course through disputes which is both legally sound and practical in the present climate,” he says.
“Go the extra mile for every client – in every piece of work you undertake. Everything we do is illustrative of that – never deprive the client of the required effort for the case to be presented as best as it humanly could. Every case requires that commitment.”
—Francis Xavier SC, Rajah & Tann
Kang finds that with restrictions to offline, in-person meetings, phone calls or texts are becoming frequent. “Thanks to the improved technology, contact-free environment is well-established but, on the other hand, I feel sorry for decreased face-to-face communication or emotional exchange with clients,” he observes. “With successful vaccination, this probably and hopefully will come to an end.”
According to Poblador, most clients have adapted to virtual meetings and this development has not affected the quality and frequency of interactions with them. “However, as we recover from this pandemic and transition to a ‘new normal,’ some clients will probably require a return to face-to-face meetings, although virtual meetings will stay because they are generally more efficient and convenient,” he notes.
As for Brandt, his firm have striven to remain close to loyal clients during the pandemic, and also successfully deployed a range of new technologies, such as the New Dynamic Hub on Dentons’ website, equipping clients with the necessary information to help them navigate and address accelerating change. “These efforts reflect the firm’s diversity, its focus on providing business-oriented solutions’ advice to clients, through the size, scale and reach of the Firm, as we seek to position ourselves as business advisers, to help clients with the New Dynamic, post COVID-19,” he says. “More often than not, face-to-face meetings have been entirely substituted by Zoom calls. Familiarity and confidence in newly used technologies have also enabled us to reach wider audiences as, together with our clients, we seek to navigate and manage change around the world, brought about by recent events. Substituting the old ways of hosting in-person meetings/conferences etc., with training/workshops/seminars for our clients, with virtual events has allowed us successfully to significantly reach wider audiences than we otherwise hitherto might have imagined. Our clients have responded, warmly and generously, by attending our events and continuing to prevail on us to assist them with finding solutions to their ever-changing needs.”
KEYS TO SUCCESS
So, what are the most important attributes of successful litigators? Brandt believes they include flexibility, adaptability, and determination. “The demands are increasing: Technical, legal skills, commercial and business acumen, great communication and advocacy skills, strategic thinking and the ability to be a true team player,” he notes. “Greater emphasis than I can ever remember is being placed by law firms and forward-thinking practices on internal training and equipping aspiring dispute resolution lawyers with the skills I have highlighted. Secondments to help lawyers truly understand the requirements of our clients, coupled with online learning/advocacy/sector expertise/workshops, have all been increasingly deployed to equip our young talent with the new skills required to allow them to deliver to the high standards that our clients and the profession demand.”
“I tend to believe that, to a degree, lawyers should already possess these attributes when we recruit them, which is why we recruit only the best students from the top law schools,” he observes. “These attributes are enhanced and developed by the training they receive in our firm, as they take part in the handling of actual cases, as team members, under the mentorship of the partners-in-charge.”
—Alexander J. Poblador, Poblador Bautista & Reyes Law Offices
For Poblador, the attributes include extensive knowledge of the law, thorough preparation, the ability to organise thoughts in an instant, and to articulate those thoughts clearly and logically. “I tend to believe that, to a degree, lawyers should already possess these attributes when we recruit them, which is why we recruit only the best students from the top law schools,” he observes. “These attributes are enhanced and developed by the training they receive in our firm, as they take part in the handling of actual cases, as team members, under the mentorship of the partners-in-charge.”
Since every case litigated is different, and each requires in-depth study to fully understand the industry, Kang highlights the specifics of the circumstances, dynamics between parties and so on. “It is a tiring occupation for a litigator to encounter new issues for every case, but also would be a pre-requisite to overcome the hardship and earn your clients’ trust,” he observes.
For Bull, integrity must be top of the list. “Judges are quick to discern which counsel they can trust,” he says. “Secondly, one has to have an unquenchable thirst for knowledge of the law and life. Legal knowledge is vital, but it must be married with a deep understanding of people, commerce, and cultures. Thirdly, one needs a good work ethic and a healthy appetite for a challenge. One should prepare thoroughly, speak clearly, listen carefully, and be tenacious. Much of this can be developed by firms which are interested in growing litigators as opposed to associates. I would much rather be accompanied in court by aspiring litigators than colleagues who do not picture themselves making the argument one day.”
ADVICE FOR YOUNG LITIGATORS
The lawyers interviewed conclude with advice for aspiring young litigators looking to enter the profession today.
“Commit yourself to the process of becoming a great litigator. Let that be one of the most important things in your life so that you approach it with commitment and passion. Leave space for other things in your life, of course, but make this one of your top three priorities. Few people become great litigators accidentally.”
—Cavinder Bull SC, Drew & Napier
Says Bull: “Commit yourself to the process of becoming a great litigator. Let that be one of the most important things in your life so that you approach it with commitment and passion. Leave space for other things in your life, of course, but make this one of your top three priorities. Few people become great litigators accidentally.”
Kang says that it is important to remember that there is no such thing as a free lunch. “A well-set legal mind, devotion and perspiration are prerequisites, even in this online-focused world.”
Brandt notes that he has said countless times over the course of his career: “’You always meet someone more than once in this world!’ I am often confounded by this truism. Accordingly, on induction I always tell our younger members of the team to remember to treat people properly, courteously, respectfully and professionally, with the assumption that this is how they will remember you, and (hopefully) treat you, when you next collide!”
Meanwhile, Poblador often tells young lawyers entering litigation practice that what they should aspire for, mainly, is to handle their cases well, regardless of whether they win or lose. “The best lawyers build their reputations not only on how well they handled the cases that they won, but also on how well they handled the cases that they lost. Excellence is itself an objective to be achieved, regardless of the outcome,” he says.
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