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Interview in French of Me Lauzeral – Guide Décideurs 2018

It was around a conference on the theme of judicial strategy: “managing and triumphing in the face of complex issues”, that Philippe Lauzeral was able to discuss, during the Law Management Summit on January 24, 2018 in Paris.

Mathieu Marcinkiewicz
Year after year, an increase in alternative methods of conflict resolution (Marc) is felt. Beyond the problem of the slowness of justice, how can we explain such enthusiasm? What impact does this have on your pre-litigation strategies?

Philippe Lauzeral
The enthusiasm comes first of all from the legislator, who, through the Sapin 2 law and the law relating to the modernization of justice in the 21st century, made it more or less obligatory to use alternative methods of dispute resolution. There is a desire to favor negotiated settlements, given the very limited means of justice. During the solemn opening of the Court of Cassation, I was struck by the speech of the chief magistrate of France who encouraged lawyers to avoid justice by resorting to Marc. This development has two impacts. First of all, economic actors are obliged to justify to the courts the prior existence of steps to settle their dispute amicably. The second is psychological: judges are much more attentive to the parties’ attempts at amicable settlements. The willingness to engage in negotiation has become an indicator of the good or bad faith of a party to the dispute.

Mathieu Marcinkiewicz
What advice should I give when drafting contractual clauses relating to the use of Marc?

Philippe Lauzeral
Particular attention must be paid to the drafting of clauses for recourse to amicable resolution of disputes. Very often, their writing is neglected so that when the execution of the contract goes wrong, we find ourselves with a clause that is unenforceable or incomprehensible. Such a defect will certainly give rise to litigation or disputes. These clauses are central and the greatest care must be taken to avoid being trapping for the parties. My advice is therefore to pay attention to their wording by being as precise as possible, both in the implementation of the mechanism and in the enactment of sanctions in the event of non-compliance.

Mathieu Marcinkiewicz
Can judicial strategies be modeled or do they involve a tailor-made approach?

Philippe Lauzeral
We can indeed envisage a certain modeling but only for mass litigation. On the other hand, when we intervene on files with significant issues, the approach is necessarily tailor-made. In these cases, a total investment is recommended to appreciate their characteristics, understand the expectations and the objective pursued by clients while anticipating the position of adversaries. All of this contributes to a personalized analysis, so that no modeling of this step seems possible to me. Certainly, the use of procedural tools is always the same because the Civil Code is intangible, but they will not be used in an identical manner, nor in the same order, nor at the same time depending on the interest and the issues. specific to each file.

Mathieu Marcinkiewicz
Can you share with us some procedural tips that you have benefited from?

Philippe Lauzeral
These are not exactly procedural tips, but tools made available to us by the Code of Civil Procedure. I am simply thinking of a case in which one of our clients is summoned for summary proceedings before the high court for several thousand euros. Being in defense, we took the initiative of initiating proceedings on the merits, by raising a difficulty of interpretation on a contract serving as a basis for the opposing request during the summary proceedings. The aim of this challenge is to explain to the judge hearing the summary judgment that the opposing request is encountering a difficulty and that a serious challenge has been raised before the TGI hearing the case on the merits. Consequently, an evidentiary judge could not judge this case in summary proceedings. Very few defense lawyers use this stratagem to contest a request for interim relief.

Source: Decision Makers Guide “Litigation & Arbitration” 2018