Risk: Avoid the curve balls

The role of a civil litigator can sometimes seem a thankless one. In most cases, instruction of a civil litigator is the ultimate distressed purchase. Even after an apparently successful outcome, clients can leave the process feeling drained (both emotionally and financially).

Litigation is filled with inherent risk and uncertainty. Even with the most meticulous planning, you will likely have to deal with some curve balls. From a risk management perspective, the wisest litigator will inform their client of the very real risks and uncertainties involved in any litigation and take steps to minimise those risks which might evolve into claims and complaints.

Here, we set out some points for civil litigators to bear in mind at various stages of a case.

Case investigation

A client will normally provide their narration of the facts and, hopefully, supporting evidence.

It is good risk management to ask your client to provide you with everything that is relevant to the dispute. Has the client checked all phone messages, emails and correspondence? If the client takes handwritten notes, ask to see those. Where your client is a business or organisation, have the emails of key personnel been checked for relevant information? Has a search of email servers been carried out?

The last thing you want is relevant contradictory evidence (which your client ought to have had in their possession) being lodged by your client’s opponent or else discovered only after a specification of documents is served. Not only can that be presentationally very damaging for your client’s case, it can also in some circumstances leave your client liable to a finding in expenses.

There are some who might say that a client who has failed to alert their solicitor to the existence of such material at the outset has only themselves to blame, but there are clients who might try to blame their solicitor’s failure to advise them to carry out thorough checks. In any event, regardless of whose fault it is, you have an unhappy client on your hands and potentially have opened yourself up to at least some professional embarrassment, and at worst potential conduct issues if there is any suggestion that there has been an improper failure to present a correct position to the court.

Impress on your client the need to identify properly all potentially relevant information, warts and all, to allow you to provide appropriate advice.

Electronic documents

Particularly since the pandemic, the norm tends to be that electronic documents will be used in court proceedings (although it is important to check whether the court also requires hard copies – sometimes the court will ask for these at the last minute).

Significant care needs to be taken in checking electronic documents which we lodge and share with others.

Those following the lawsuit brought by the families of the Sandy Hook victims against Alex Jones (of InfoWars notoriety) might have felt an empathetic stomach lurch when witnessing the debacle which occurred in court, arising out of some unintended document disclosure. In advance of the trial, rather than send to the plaintiffs’ attorneys the intended electronic bundle of documents, Jones’ lawyers emailed a drop box containing Jones’ entire phone records for the previous two years.

This only came to light during Jones’ cross-examination, when a phone message was put to him, containing material which he had previously attested did not exist. In addition, the attorney for the plaintiffs informed the court that he had been asked to deliver Jones’ phone records to the January 6 Committee.

Although Jones’ lawyer maintained a surprisingly good poker face throughout the exchange, one can imagine the level of panic actually felt.

While perhaps an extreme example, this serves as a reminder of the need to take the utmost care in handling electronic documents. One seemingly innocuous attachment can contain hundreds, or thousands, of pages of information, which can be sent out with one click of a mouse. Gone is the opportunity to hastily run down to a mailroom to check and then remove any unintended enclosure.

From a risk management perspective, solicitors should take ownership of checking (and rechecking) attachments which are to be lodged with a court, intimated to opponents or sent to others. This should not be underestimated or considered an administrative task. Do think carefully whether it can routinely be delegated to those who have no real knowledge of the case or the context in which the documents are being provided. In addition, PDFs should be properly named to identify their content easily, and to confirm that they have been approved prior to sending.

Communications with the court

With courts now communicating more or less wholly by email, it is worth making sure that the court’s line of communication is with more than just one individual. That individual could miss the email, be off ill or be otherwise unavailable. From a risk management perspective, it is better to include the case handler and some other centralised email address at your firm (for example a court runner, reception, secretary or other email address that is routinely monitored). There is a real risk that a line of communication between the court and one individual solicitor will lead to important communications (and court orders) being missed.

Another point to consider is that court interlocutors should be fully read, and any important dates diarised, as soon as practical once received. Since the pandemic, and with the move to remote hearings, many courts issue orders which provide deadlines which do not necessarily conform with the default rules. There can be dates specified for affidavit evidence, and written submissions (which pre-pandemic were not required) might be ordered in advance of hearings.

In addition to carefully considering and diarising the precise terms of orders, it is prudent to make yourself familiar with the current practice in the relevant court, by checking the current practice notes available on the Scottish Courts website or making enquiries with the clerk.

Deadlines and time management

Whether a time-barred personal injury claim or a missed appeal date, the failure to meet deadlines accounts for a significant number of claims and complaints against litigators.

Following on from the last point, a key to managing this is to action any court orders on receipt, by diarising key dates and factoring in preparation time in advance – for example dates by which to instruct counsel or experts.

The use of a centralised or shared diary can also help manage the risk of dates being missed because of the absence or inadvertence of any one individual member of staff.

From a pursuer’s perspective, diarise well in advance of the earliest possible date for prescription. While the law in this area has been evolving (and we now also have the Prescription (Scotland) Act 2018), you do not want to be left in the position of having to engage in protracted legal argument about statutory interpretation and case law if that can be avoided.

Aim to avoid leaving important tasks (such as serving a writ or lodging an appeal) to the last minute. Murphy’s law dictates that this is exactly when issues such as slow IT systems and bounced summonses will present themselves.

Offers, tenders and settlements

Litigation is a costly and uncertain process. Many clients trust their solicitor to provide them with advice on how to bring disputes to a cost effective and, if possible, swift resolution.

Civil litigators should be live to the need to advise clients on their options to manage that – including advising on pursuers’ offers, tenders and alternative dispute resolution.

Failure to advise on this aspect can lead to client complaints and claims, even in the face of an apparent win. A successful litigant might still balk at the level of irrecoverable expense incurred and, after the event, ask why they were not advised on the mechanisms which might have resolved their dispute at an earlier and cheaper stage.

Litigators can seek to manage this risk by adopting an ongoing review of resolution options, and by having a record of discussing these options with the client.

While this all may seem like additional burdensome work in what is an already short day, these are habits that are easily formed and can pay dividends in the long run. As the old saying goes: fail to prepare, prepare to fail.