Risk: File notes – the when and how

Last year, when preparing an article on the importance of communication, I was reminded of the famous “failure to communicate” line from the 1967 film, Cool Hand Luke. When taking and implementing client instructions, the diligent solicitor will always seek to avoid such a failure, but lines of communication can quickly be broken if relevant file notes are missing or incomplete. This article examines the importance of accurate file notes and provides tips on preparing them.

Before turning to the “when” and “how” of taking good file notes, we should first consider the “why”.

Why take a good file note?

File notes are hugely important for a variety of reasons. A written record of instructions received, and advice given, is a fundamental part of good file management. Such a record is invaluable where a file has to be handed to a colleague, whether due to planned absence or because the initial solicitor has tragically succumbed to the proverbial bus.

I have seen first-hand on a number of occasions just how advantageous a written record can be from a claims perspective. There is a common saying that an oral contract is not worth the paper it is written on, and some might argue the same could be said of oral advice. While I would not necessarily go that far, there is no doubt that a contemporaneous written record of oral advice can assist in avoiding later dubiety and disputes.

I also recommend the taking of full and detailed file notes as a valuable stress management tool for the busy practitioner. It may seem counterproductive to create more work for oneself when under significant time pressure, but the act of getting what is in the mind down on paper can be hugely beneficial in reducing the amount of information practitioners need to carry around with them daily. Noting action points and key advice discussed is also an effective way of working through relevant issues, and prompting follow-up or additional enquiries.

In brief, taking detailed file notes is, in my view, a significant advantage, likely to result in the ordered and thorough conduct of a transaction or claim. It can prevent confusion and allow potential issues to be spotted at an early stage. This could prevent a potential claim arising.

When to take a good file note?

For anyone who deals in claims, the short answer to this point might be “Always!”, but it is fully appreciated that this may be wishful thinking.

Solicitors are incredibly busy professionals and, despite the impression given in legal drama shows where a team of several lawyers seem to work on one case at a time, will usually be working on several cases at any given time, all of which require careful attention. Taking full and timeous file notes for each case may seem like an additional burden, and there is of course no guarantee that being able to point to a file note will provide a cast-iron defence to a claim. However, if time is taken to get into the habit of noting instructions and advice, the job of keeping each case or file in good order and ensuring that any deadlines are adhered to becomes much easier.

Whenever legal advice is given, the solicitor should always confirm it in writing. This clarifies the position for anyone else who needs to work on the file. It is a vital risk management tool for an organisation, and for ease of reference when the advice needs to be reviewed or referred to.

Even if no specific advice is provided in a conversation with a client, the taking and filing of regular notes can provide crucial context for a solicitor-client relationship and the general level of communication in place.

How to take a good file note?

This question is perhaps the most difficult, because there is no “one size fits all” answer. There is room for individual preference. While file notes have always been a crucial part of legal practice, technology has changed immeasurably, and there are a multitude of ways in which notes can be taken. Notes can be dictated, typed, handwritten, or even recorded in real time during a client meeting. A detailed, standalone note, or business entry, can be prepared following a client meeting or discussion. Alternatively, advice or instructions can be reiterated in a follow-up email saved to the file – this may be preferable in some instances, as it gives the recipient an opportunity to respond and address any misunderstandings or points requiring further clarification.

Where the factual background or legal position is complex, it can take some time to set everything out fully in a note, and ensure that all key points touched upon in a discussion are included. However, preparing notes in this way can be worth its weight in gold, particularly when you or a colleague need to review the file or refer to the advice given.

As indicated, there is significant room for personal preferences. However, as a minimum, I suggest the following as key points to include when taking a file note:

• the date and duration of discussion;
• the matter it relates to (i.e. the client reference if there is one);
• the location and meeting type (i.e. in person/video call/phone);
• the individuals present (including who took the note);
• the note of what was discussed (to include instructions given, and the details of advice provided and any response or follow-up queries).

The way in which discussions are documented is especially crucial if advice is being given, and it can often be helpful to include subheadings to make the note easier to read. While it’s important to make an accurate note of the key details discussed, do not attempt to create verbatim records as these are likely to be too challenging and time-consuming to keep up. Also, it’s not advisable to record the exact phrasing used, as this might make the note look like a verbatim record, making it harder to argue that anything outwith the specific wording was mentioned at all.

Whichever method is preferred, it is hugely beneficial for a second (perhaps supervising) solicitor to review the note once prepared. The preparation itself, and any further review, should be carried out as soon as possible after a meeting or discussion, when memories are fresh. Encouraging a culture of regularly noting discussions and advice for the file and, importantly, cross-checking those notes with a colleague, can create a solid foundation for efficient file management.

Finally, ending a note with a brief summary, a list of agreed action points, or confirmation of the proposed next steps, can act as an important aide memoire or checklist as a transaction or case evolves.

In summary, the regular preparation of file notes can be of huge benefit to practitioners through their career. There is no one way to prepare a good file note – the important thing is just to do it! If we do so, those irritating “failures to communicate” ought to be few and far between, making clients far happier and our own lives that bit easier.