In short, contentious work involves some form of dispute. This often means litigation (usually as a last resort), but could also include mediation, arbitration, etc. Non-contentious work does not involve a dispute.
Non-contentious work is often discussed synonymously (whether entirely accurate in practice or not) alongside similar terms such as ‘transactional’ work, or ‘advisory’ work (there are some differences here to be outlined later via examples). The important point to understand is that, in simple terms, a dispute is not the main focus of a non-contentious project (though internal disputes may, and often do, arise in smaller quantities throughout a non-contentious project).
While it may be tempting to think of each practice area within a law firm, for example, as either contentious or non-contentious, the reality is that you need to think of issues on a project by project (or case by case) basis. For example, the intellectual property (IP) practice area of a law firm might simultaneously be working on one project where they are negotiating the licensing of selected IP between two willing parties, while at the same time also running a case wherein one party is suing another for copyright infringement. At some larger firms, such practice areas will actually be further sub-divided into contentious and non-contentious teams.
With that out of the way, let’s consider some tangible examples of contentious vs non-contentious work that you might encounter across a range of different practice areas, some of which may overlap:
|Contentious Examples||Non-Contentious Examples|
|Suing a business for wrongful termination of your client’s employment contract [Practice Area: Employment]||Advising a company on the purchasing of a branch of another business (Transactional) [Practice Area: M&A]|
|Suing a music artist for copying the songs of one of your clients [Practice Area: IP]||Advising a business on how to become more tax efficient (Advisory) [Practice Area: Tax]|
|Representing a building developer being sued for issues with one of their sites [Practice Area: Real Estate]||Advising a business on its legal obligations in regard to planned cuts to its workforce (Advisory) [Practice Area: Employment]|
You might have noticed that most of the illustrations thus far have mostly been drawn from the solicitor/law firm side of legal work.
The work of a barrister tends to be contentious by its very nature – they are usually approached to speak in court (essentially, to take part in an argument which is, by default, contentious) by a solicitor who has been preparing for a case. Barristers can do non-contentious work – but it is much less an integral part of their everyday practice than it is for solicitors.
The contentious vs non contentious divide is a more important one for solicitors to understand in particular. In fact, these terms are only really used commonly amongst solicitors. The difference is particularly important for solicitors to understand during their early career, since they will need to make a number of choices which, whether consciously or not, will often be guided by the contentious vs non contentious division.
When aspiring solicitors apply to law firms early in their career (perhaps for a training contract or vacation scheme), they will often choose firms which align with their own interests. Some law firms will be better known than others for contentious work, and vice-versa. For example, the Legal 500 ranking for commercial litigation puts Clifford Chance (a Magic Circle firm) in the top ranked tier for this work, with White & Case (an elite US firm) close behind on the second tier. The rankings for other non-contentious practice areas related to commercial activity are entirely different.
Many aspiring solicitors will ultimately aim to secure a training contract, but there are more decisions to be made after this point – arguably the largest being which ‘seats’ (rotations through different practice areas, usually structured via four 6-month blocks) to take up. Some firms will mandate that you must choose a minimum number of seats which expose you to contentious work. It should also be noted that many seats will mix both contentious and non-contentious work for trainees (see the example projects from the employment practice area in the table above).
A solid foundation of common lawyer skills is required for both types of work (the usual suspects – critical thinking, communication skills, excellent writing ability, etc). However, there are some differences worth being aware of which might affect whether you think you are suited to one type of work more than another:
Solicitors will often (though not always) be required to make their choice (in regard to this contentious vs non-contentious split) as they approach qualification (at the end of their training contract) and apply for an NQ associate role in a particular team.
In short, aspiring lawyers need to understand the difference between contentious and non-contentious legal work for the sake of their careers. This particularly applies to solicitors going through the training contract process (with seats to choose). Once the difference has been understood, weighing up the pros and cons of each side based on your own interests and skillset becomes an important process for all aspiring lawyers.
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