When many of us think about the work of a commercial litigation lawyer, we conjure up images of courtrooms and people firmly declaring ‘objection’, but as Kirsten O’Rourke explains, there is a lot more to it:
“There’s so much work that goes on behind the scenes of a case, even if you don’t go to trial; but a trial is the culmination of all your hard work, and it gets tested very thoroughly.”
Working as an in-house litigation lawyer, building or defending a case involves extensive communication with stakeholders from both within and outside of the business; presenting recommendations to senior management; providing advice on settlements; negotiating with other parties; drafting pleadings; consulting with witnesses; and of course, the trial itself.
Therefore, it isn’t at all surprising that Kirsten is no stranger to time pressures and highly stressful work environments. But, for someone used to managing relationships it is surprising to find that upon picking up an employment law text book as a young law student, Kirsten decided the regulatory framework looked too pernickety and that she wasn’t interested in pursuing employment law.
After completing her first year of a law degree at Auckland University, Kirsten was offered a place in the inaugural year of the University of Waikato’s School of Law. To her, it made sense to move back to Hamilton where she could live at home and focus on her studies. From the outset, Kirsten was drawn to litigation and the high stakes of the courtroom.
She completed her professional qualifications at Victoria University, and falling in love with Wellington, she took a job with the State Services Commission at a time when the public service was decentralising. Ironically, this first role was heavily based around employment law, particularly in relation to individual employment contracts for school principals, but also collective negotiations for the wider education sector.
From here, she moved to Philips Fox, a private practice, also based in Wellington, where she stayed for over five years and worked her way into the role of Senior Associate before moving to London in 2001. As part of the commercial litigation team, Kirsten worked mainly on insurance matters, but also convened the employment law team, led by Sean O’Sullivan.
It was in this role that Kirsten was the sole counsel in a landmark case against an employer, taken by the widow of a man who had committed suicide due to pressure at work.
“The case wasn’t expected to be successful. There was no precedent for an estate successfully suing an employer in this way. But, we were able to prove that this man had been treated unfairly and that this had ultimately led to his suicide. I was very proud of the result, it validated the importance of the relationship between an employer, their employees, and the wider family who can also bear the pressures of workplace stress. His wife had felt the pressures of his depression and stress, and will forever feel the impact of the loss of her husband. And whilst nothing could bring her husband back, I felt like the judgement delivered a measure of justice for her.”
In search of a new challenge, Kirsten moved to London and took a role with Willis Group, a multinational risk management company, where she continued as an insurance litigation lawyer, but also became heavily involved with enforcing restraints of trade, fending off the poaching of employees and clients by competitor firms and protecting the Group’s confidential information. The environment was fast paced with heavy time pressures.
Kirsten’s next challenging role was motherhood, she took some time out of the workforce, having a daughter, then later, a son.
She returned to the workforce providing maternity cover with BCG Partners, a leading global brokerage servicing the financial markets, where she managed the firm’s High Court litigation across a diverse portfolio of matters. This role also regularly involved defending and pursuing injunctions arising out of senior executive and team moves.
After some more time out to be with her children, Kirsten was offered an opportunity that would allow her to blend family life with work. A six-month contract with Lloyds Banking Group seemed to offer a good trial period to dip her toes in the water before committing to a permanent role. Three and a half years later she was still with Lloyds as an in-house banking litigation lawyer dealing with complex, high value litigation and contentious regulatory matters. This role primarily involved defending mis-selling claims against the bank, arising out of the sale of interest rate hedging products to small to medium sized businesses. Leading the first interest rate hedging product case that Lloyds has defended through to trial, and won on all counts, was a highlight for her.
“With litigation you only ever go to trial if you’re feeling very confident and have exhausted all reasonable settlement options. But you can never eliminate litigation risk so you never know with 100% certainty which way it’s going to go.”
Kirsten is currently taking some time out to prioritise family life, whilst her husband transitions to a new role involving frequent travel and long hours. She enjoys playing tennis, being involved with the children’s schooling and activities, as well as renovating their new home. In the new year she is considering taking up a new in-house litigation role, or moving back to private practice within a boutique litigation firm.