Clients like solicitors. Solicitors draft contracts and set up companies. They move deals forward. When clients think of lawyers, they usually think of solicitors, not of litigators. Litigators are for troubled times, and those are rare. It’s not to say that clients dislike litigators. But they don’t really know litigators.

Yet litigation issues are very real and much more common than litigation itself. Deals, compliance, the corporate lifecycle—it all may affect (1) future litigation rights; (2) current unrelated litigation; and (3) relationships arising out of past litigation. Solicitors are expected to take care of such litigation issues, even if, as some solicitors say, they don’t want to touch litigation with a ten-foot pole.

Take business name registration. A very solicitor project. In Ontario, if your client operates under an unregistered name, it is “not capable of maintaining a proceeding in a court in Ontario in connection with that business except with leave of the court.” So if your client puts its normal corporate name on the invoices but omits the Inc., or the Corp. without registering this stem, and it goes into litigation in the future, and the opposing party’s lawyer is aware of this section of the Ontario Business Names Act, what do you think will happen? I’ve even seen numbered companies that used a completely made-up name everywhere without registering it. Although we should distinguish solicitor’s negligence here from actual corporate near-fraud.

Next. You are the corporate solicitor and your client is suing or being sued somewhere. Can that cross over into your daily work? Of course. First, watch the name registration issue that I’ve already explained. Second, government compliance or insurance reporting obligations may suddenly arise out of litigation. Who should know that your client must give notice of claims to its insurer or declare them to tax authorities? Not the litigator.

Finally, concluded litigation can trigger important obligations through settlement agreements and judgments: confidentiality, no claims against third parties, structured payments, injunctions. The list goes on. The solicitors are the best people to monitor and service these post-litigation relationships and obligations. Litigators will sign off after releases are executed or judgments entered (with a parting report to the corporate solicitor, hopefully).

Litigators are often painfully aware of the litigation effect on solicitors’ work. Litigators can do so much to help solicitors fine-tune their litigation awareness and ability to work with issues related to potential, current, and past litigation. This is the first article in a series designed to bridge the gap between litigators and solicitors. Knowing litigiation issues will always give solicitors an edge, and The Litigation Mind will serve this purpose. Subscribe to this publication for regular brief reports about litigation issues in solicitors’ work.