STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me think how little attention is paid to the “litigant’s view” of the litigation process. For us lawyers litigation is a technical process. For the litigants the effect of the litigation can have a major impact on their lives. There is little in our training (as barristers or solicitors) that helps us put ourselves in the litigant’s place and examine ways in which we can ease the stress to our clients.
THE ARTICLE
The article examines the 24 main reasons for stress. Some of which lawyers can deal with, some not.
THE TOP REASONS FOR STRESS
Interestingly the number one reason for stress is “Being asked about the event again and again”.
THE REMEDIES
The authors were looking specifically at personal injury claimants. They make four recommendations.
“1. A structured interview that would gain the relevant background information needed by all professional involved.
2. A typed chronology of GP attendance history so that all visits to a GP for accident-related problems are known to the expert prior to the assessment.
3. Clearer dissemination of information about the litigation process to claimants.
4. Full description of the accident provided in the instruction letter.”
A STRUCTURED INTERVIEW AT AN EARLY STAGE
In many cases we see claimants (and defendants) asked to give a witness statement just before the date of the timetable given by the court. By that time:
- Memories have faded.
- The claimant (in a personal injury case) has often given accounts to the doctors.
- Any variation in the accounts between documents and a witness statement will be pounced upon in cross-examination.
If there is one thing that helps in both assessing risk, and increasing the prospect of success, it is the obtaining at an early stage, witness evidence of the standard that will be needed to prove matters at trial. This is often left far too late.
- A statement on the facts of the incident can be taken early with a statement as to damages taken at later date.
- There is a danger of late statements being “corrupted” (totally innocently) by subsequent events and by the litigation process.
- The taking of an early statement is a factor that could help decrease the stress of those involved in the process.
TAKING WITNESS STATEMENTS EARLY: A NEW YEARS RESOLUTION?
See:
- Witness statements: the prequel to the essential checklist
- Witness statements: Not one but two essential checklists
- Drafting witness statements and the genius of John Munkman
- Drafting witness statements: the questions you ask will determine the answers you get
- Drafting witness statements that comply with the rules: a checklist too important to ignore
REDUCING THE STRESS OF LITIGATION FOR THE CLIENT
Clearly litigation is a stressful process. However surely much more research and consideration is needed into how lawyers can reduce the stress of litigation for the clients. I have concentrated upon one simple matter, obtaining evidence early. There is undoubtedly much more than can be done.
Something that still needs to be said, Gordon. It still amazes me that to date, as lawyers, we fail to appreciate the importance of actively listening and showing empathy when engaging with clients. Perhaps these are skills that should now be taught on postgraduate courses rather than generic interviewing skills. I also thought it was up to the LETR to address some of these deficiencies ?