SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is virtually nothing. Some of us have come up with a plan.
THE YORKSHIRE LEGAL PIONEERS
We all met up yesterday evening, nearly 40 litigators. Everyone had come on a course called “How to get Sued, Make a Loss and be Miserable”. However the most cursory cross-examination (by me) of attendees revealed that, strangely, no-one present wanted to get sued, make a loss or be miserable. It could have been a short course. Instead we turned the subject matter on its head. It turns out that everyone was interested in how not to get sued, not make a loss and not be miserable.
HOW WE CAME TO THE CONCLUSION THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
To start with we examined a simple issue. Service of the Claim Form at the correct address. This is not a Jackson or Mitchell point. Problems with service stretch back as far as the introduction of the CPR and the requirement that (with some exceptions) when a party nominates an address for service service has to take place at that address.
OUR THOUGHT PATTERN
The thought pattern (with some prompting it had to be said) was this.
1. Service of the claim form at the correct address is essential.
2. Defendants also have to know the correct address for service too. Defendants only have a limited time in which to take a point on service before they are deemed to have accepted the jurisdiction. (There could be defendants litigating now who, when it comes down to it, will recover no costs and indeed be paying damages because they failed to realise that there was a point on service they could have taken.)
3. The issue of the correct address for service is far too important to leave to chance or memory. Nomination could be made very early on and many hundreds of letters and e-mails passed between the parties. If the claim form is being served at the last minute letters and e-mails could be easy to miss.
4. It would be a simple matter to have in place a system whereby the file was marked and/or case management system also notified once an address for service was given.
5. This system would not involve any additional costs. In fact it would save costs.
6. It is, therefore, fairly unwise not to have such a system in place.
7. In fact the point is so obvious you would be stark raving bonkers not to have a system in place. It is easy, costs nothing, saves money, reduces stress and greatly reduces the risk of making mistakes and getting sued.
HOW DO WE GET TO OUR STATISTIC?
Litigators of all types and experience were present. No-one had a system in place to deal with service of the claim form.
I asked the same question at the recent Law Society Civil Litigation conference. Of the 120 delegates only one had a system in place (one of the lecturers did as well, but he is an expert and I’m not counting him).
I asked the question again at the Association of Cost Lawyers annual conference (over 300 delegates). Slightly different criteria I know but no-one there had a system in place or knew of a firm where a system was in place to monitor correct service of the claim form.
THE CONCLUSION WE REACHED
The conclusion we reached on this (and several other matters) was that the legal profession was doing nothing at all to protect itself from obvious mistakes. Safety systems were not in place. Although the profession pointed fingers at the court system, Mitchell, Jackson and other spectres, the reality was that no-one has been paying attention to basic issues of safety.
WHAT WE DECIDED TO DO: THE BIRTH OF THE YORKSHIRE LEGAL PIONEERS
Using the collective wisdom of all present we decided to look at what basic “safety systems” litigators could and should have in place to protect ourselves. Our systems would have the advantage of being written by litigators for litigators. We decided to keep it simple. We concentrated on six different aspects.
2. Pre-action steps and the pre-action protocol.
3. Service of the Claim Form.
4. Witness evidence and witness statements.
5. Cost budgeting and assessment.
6. Avoiding undersettlement.
(We were supposed to be discussing ways of dealing with procrastination as well but none of the groups got around to it [this is true]).
SO WHAT IS GOING TO HAPPEN NOW?
Over the next few days I am going to publish the checklists prepared by each group. We do not claim these are perfect, however they are a start. They represent our considered view, assisted in some cases by the wine and other refreshments present. If you disagree with us or think there are things that could be added there is a comment section on this blog and you are welcome to contribute. We do not claim to have all the answers. However we certainly realised that there are virtually no systems, checklists or any manual at all that protects litigators from making mistakes. We only claim to be making a start.
IS 99.8% IN FACT THE CORRECT STATISTIC?
Get a life.