Risk: Top tips for trainers and trainees

The Covid-19 pandemic brought normal working life to a grinding halt. If even the most cool-headed and experienced of solicitors were disorientated by the sudden changes, they were at least able to use their existing skills and experience, their knowledge of office systems and the support of their work colleagues to adapt quickly to new ways of working, some aspects of which now seem to be here to stay.

Spare a thought, though, for the trainees just starting out in the profession at that time. It is difficult enough embarking on a new career – getting to know the job, the firm, the people, the protocols and the politics – even where there is the opportunity to become immersed in it right from the outset. What must it have been like to be stepping onto that first rung only to be blindsided by the most profound and isolating change to working life as we had known it?

Yet one of the positives to be taken from that time is that it magnified and revealed for all to see the challenges, in particular the risk management issues, faced by trainees and those responsible for their supervision; challenges that had probably existed all along but which had never before been as starkly exposed.

In this article, we look at these issues and offer some thoughts on how best to address them, from the perspective of both trainees themselves and those supervising them – “from both sides”, like Joni Mitchell, although we can’t promise anything quite as lyrical or profound as she did. But then, she was looking at clouds and love and life, not trainee risk management.

Alan Eadie

When it comes to assessing the standard of skill and care against which a solicitor’s performance is to be judged, the relevant standard is neither wholly subjective (measured against an individual’s assumed capabilities based on their specific qualifications and experience), nor wholly objective (measured purely by reference to a notional member of the profession). Instead, it’s a bit of both, being measured according to the degree of skill and care ordinarily exercised by reasonably competent members of the profession of the same grade and specialisation.

So where does that leave trainees? Can it be said that anyone carrying the designation of trainee solicitor is under a less onerous duty of skill and care merely due to the lack of experience and specialist skill that inevitably comes with their trainee status? Sadly, it’s not that straightforward. Where a firm of solicitors has both senior and junior staff offering a range of skills, specialist or generalist, at various grades charged at various fee rates, that firm is expected to deploy its skills as necessary and appropriate. 

In other words, a firm is judged by the standard of skill and care appropriate to the professional staff who ought to have been undertaking – or at least supervising – the work in question. So not, for example, by the standard of skill and care actually exhibited by an exhausted trainee left to tidy up the loose ends of a late night completion meeting, but by the standards expected of those other members of the legal team who have by then swanned off for last orders and a pizza.

Be clear

When setting tasks for trainees, explain the background and the reasons for what the trainee is being asked to do, and where it fits into the wider project, case or transaction. This makes for a better learning experience for the trainee, usually produces a better result, and minimises the risk of any balls being dropped. It will give the trainee some idea of the importance, sequencing and urgency of the task, although it is also important to be specific about these things – set clear deadlines and make it clear if being able to start another step is dependent on the trainee completing the task they have been assigned. 

Awareness and inclusion

It’s important to be alive to whatever offers trainees the most valuable opportunities to learn from seeing their qualified colleagues in action. Remember to include them wherever possible and to remind colleagues to do likewise to make sure you are capturing all those opportunities.

Of course, there are the obvious things like involving trainees in court or tribunal hearings, client meetings, or negotiation meetings with the other side in a transaction or litigation. However, remember to involve trainees in internal meetings, tenders or pitches for new work and business development events where appropriate, so that they gain experience and knowledge of all the components of what it takes to operate competently and effectively as a solicitor.

Whatever policy you may have adopted in terms of flexible working, be aware that a large part of the learning experience for trainees comes from the informal training of working alongside colleagues. This can include being able to ask for styles or pointers in the right direction, to ask “daft” questions, or to have the chance to listen in on how to handle difficult questions from clients; or to buy time and avoid being put on the spot to give advice or commit to something when it might be unsafe to do so.

For supervisors, overhearing a trainee conducting a call or being on hand to offer guidance is usually the best way to prevent, catch or correct a mistake before any serious harm is caused. The value of that two-way process of training and being trained “by osmosis” was perhaps not fully appreciated until the pandemic took it away, but it’s something we now recognise as a vital part of the process of nurturing, managing and supervising trainees.

Working from home gave (and gives) experienced fee earners the chance to concentrate and get on with work uninterrupted, but for trainees forced into that situation during the pandemic it could have been an isolating and uncomfortable experience, especially when they were still unsure of things. Now that we’re back to normal(ish), it is better to encourage trainees to spend as much time in the office, working in close proximity to colleagues. It was again Joni Mitchell who mused: “you don’t know what you got ‘til it’s gone”. But now that it’s back, appreciate it and take full advantage.

Be available

Particularly in the latter stages of their traineeships, it is a healthy thing for trainees to be given more responsibility and autonomy. Any drivers among you will know that the real learning only starts when you lose the “L” plates, so it is important to make sure that trainees experience fending for themselves when preparing them to be a safe pair of hands when they qualify. But it’s also then that there is the greatest risk of things going awry, so the important thing for supervisors is to continue to be on hand, even if only from a distance, to provide guidance or to step in if need be.

This was illustrated in the English case of Dunhill v W Brook & Co (A Firm) [2018] EWCA Civ 505, in which the Court of Appeal upheld a decision dismissing a professional negligence claim against solicitors and counsel regarding settlement of a personal injury claim just before trial. There, a trainee solicitor alone had accompanied counsel, yet it was acknowledged that it fulfilled the firm’s duty of care to permit a trainee to accompany properly instructed counsel to the trial, provided they could rely on a qualified solicitor (preferably the solicitor having the conduct of the case) being available if the need arose.

Provide feedback

It goes without saying that giving trainees feedback on tasks they have undertaken is often the best way of guiding them on how they might improve. That applies equally to risk management issues; one of the most valuable aspects of the learning experience is identifying the “near misses” and equipping trainees with techniques for avoiding similar traps in the future. 

Emelia Conner

As a trainee solicitor myself, working in my firm’s Professional Indemnity team and often assisting in the defence of claims against Scottish solicitors, I have been surprised by the level of responsibility and accountability which comes with the role. At the same time, I have become aware of the challenges and risks solicitors at all stages of qualification face in their daily professional lives. I have seen how those risks are magnified where legal work is entrusted to those who, often through no fault of their own, find themselves out of their depth. Drawing from that, I have compiled a list of my top five risk management tips for both aspiring and current trainees:

1. Be curious

Dare to ask questions even if they may seem trivial. Every trainee has found themselves contemplating how to seek clarification without seeming ignorant. Rest assured, in my experience such concerns are rarely justified. In fact, posing questions often leads to the most valuable learning experiences. Cultivating curiosity and seeking clarification will undoubtedly help you to tackle work in a careful and considered way, minimising potential risks.

2. Know your limits

Building upon the previous point, it is crucial to recognise that your traineeship is more than just a two-year job interview. While it is natural to strive to impress, it is equally important to strike a balance between showing initiative and making dangerous assumptions. At the start of any task, take the time to understand your role and the expectations placed upon you. By doing so you will effectively avoid overstepping your boundaries and minimise the possibility of undertaking tasks that may expose you to unnecessary risks. Above all, never offer advice unless you are absolutely certain of its accuracy.

3. Maintain open communication

Regular and effective communication with your line manager or colleagues handling a matter is paramount for trainees. Consistently checking in with your line manager ensures that nothing is overlooked, while also letting them know that you are on top of things and demonstrating your eagerness to contribute to the progress of a matter. Actively seeking feedback from your colleagues will further enhance your competence and help you avoid potential mistakes.

4. Keep comprehensive attendance notes

Trainees often bear the responsibility for drafting attendance notes during meetings or hearings. The significance of these notes may only come to light when a colleague asks, “What exactly did they say?” in reference to a meeting. Therefore, it is essential to take clear and concise notes. Not everything needs to be transcribed verbatim, but it is good practice to record each person’s statements and be clear when summarising or paraphrasing certain parts of the conversation.

5. Verify and reverify

Finally, adopt a meticulous approach by double or even triple-checking your work. Whether it involves reviewing advice notes before submitting them to your supervisor or seeking input from multiple sources when faced with complex issues, exercising extra vigilance is crucial. Your traineeship marks the beginning of your journey in understanding the law and you will continue to grow and mitigate risks by maintaining a heightened sense of scrutiny.

By thinking about what works best for everyone and adhering to these risk management tips, you will not only bolster your professional development; you will also safeguard yourself against potential pitfalls and feel all the more up to the task when the “T” plates finally come off.