Our Approach: What makes us special?

When we set out to establish our small law firm in 2003, we were driven by the idea that the strict separation of advisory/transaction work from litigation, as more and more practiced by major Swiss law firms, was not in all instances perfectly suited to clients' needs in Switzerland. 

"Cross-fertilization" between advisory work and litigation was, in our view, underestimated. And the alleged positive effect of handing litigation of all sorts and across all industries to pure litigators (who were specialists in procedural law, but would each time need to learn the specifics of the respective industry and the law applying to it, on the job) was in our view over weighted, in particular against the following background, which makes the situation in Switzerland different from the one in the U.S., from where the separation in big law firms originated:

Commercial litigation in Switzerland never takes place before a jury, and almost always -- at least in major cases -- the factual allegations and legal arguments are exchanged by way of written legal briefs, carefully prepared over weeks and months, rather than through oral argument. This even applies to procedural motions. Sometimes, counsel does not once physically appear in Court over the entire duration of year-long proceedings (except for settlement talks, if any). In the relatively rare instances where witnesses are being heard, it is usually the Judge who asks the questions and there is no game of "direct", "re-direct" and "cross-examination" by the lawyers. Hence, a Swiss litigator typically must be no rhetorical wunderkind (he better be not) and must not, normally, be able to react to tactical moves within seconds. Nor must he know all the wrinkles of procedural law by heart or be a particularly good "seller".

Fact-finding and extensive document review capacities also play a much smaller role than in other jurisdictions -- for the lack of effective discovery tools under Swiss procedural laws. Big litigation teams are therefore usually neither necessary nor particularly welcome in Court.

On the other hand, profound knowledge of (the sometimes rather dogmatic) Swiss substantive law and the respective precedents, as well as a deep understanding of market practices in a given industry, are indispensable in order to convince a panel of Swiss full-time judges, who are themselves often specialized in the respective field of law (and at times, for example in the Canton of Zurich, supported by an "expert judge" from the respective industry, also sitting on the bench).

The experiences we gained at major Swiss law firms (both in the litigation department as well as in transactional practice groups) and the role models we met over the years, made us think that a good M&A transactional lawyer willing to familiarize with procedural law, would, under the circumstances just described, often be just the person we would pick to support us in M&A litigation if our own interests would be at stake in Switzerland.

And, vice versa, a lawyer who is already "battle proven" in enforcing/defending Reps & Warranties contained in a typical Swiss Share Purchase Agreement, would probably also be the right person to negotiate the respective clauses -- together with a suitable forum clause (Courts in various Cantons of Switzerland, as we know from experience, considerably differ as to their expertise, specialization and organization when it comes to international transactions). And he would also be a good choice in order to explain the true meaning and effect a Swiss Court may probably give one day to some contractual language (despite its plain meaning).

What we think holds true, as just described, with regard to M&A transactions, probably also applies to other areas, such as advising and representing members of senior management and corporate boards when it comes to (potential) liability risks. The risk map we need to draw for our clients in takeover-situations or situations of financial distress, may not, for example, disregard the fact as to who (shareholders, creditors, employees, the corporation) may have, based on specific precedents, legal standing to actually sue, and who may, based on our experience, have a sufficient incentive (in terms of a cost-benefit analysis of litigation) and good chances to win.

The above led us to adopt the following strategy: We are (and will remain) a small, independent team of full-blooded lawyers, assisting our clients in Court in a limited number of legal areas and industries, and applying the expertise we gain there to ensure the relevance and highest level of quality of the advice we give to our clients (which over the years started to include other law firms and auditing firms) -- and vice versa.