BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)

October 4, 2016 · by · in Applications, Avoiding negligence claims, Case Management, Civil Procedure, Conduct, Uncategorized

There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload.  This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is always sad: for the administration of justice; for the clients; for the firms involved and for the individuals themselves.  Here we look at the way things to wrong; why they go wrong;  whether anything can be done to avoid a “chronic” litigator breakdown and the practical steps that can be taken when a caseload, or individual case, has gone off the rails.

“The ideal caseload is that caseload which allows the attorney to ethically and fairly bill the most that the attorney is willing, without being in danger of making mistakes or skipping important steps while leaving some time for self-development, marketing, unavoidable or unplanned surges in demand on attorney time and other essential firm-related activities .” (The Optimum Caseload)

  A RECENT EXAMPLE

A recent example involved a trainee solicitor who worked from September 2012 until May 2013 – when he was summarily dismissed.

“In relation to 10 files Mr Walker had conduct of, the following is the case:
  • 2.1.1 he misled clients and the firm that claims were being progressed when he knew they had been struck out.
  • 2.1.2 he failed to inform his clients of offers to settle their claims.
  • 2.1.3 he failed to attend court hearings on his client’s behalf which led to claims being struck out.
  • 2.1.4 he failed to comply with Court orders and directions and failed to file relevant court documents within stipulated timeframes.
  • 2.1.5 he misled the Court by preparing a statement in support of an application for reinstatement of a claim on the grounds that a court document had not been received, when in fact it had.
  • 2.1.6 he failed to inform the firm and his team leader of the acts and/or omissions outlined above and deleted incoming documents from the case management system.”

This is far from being a rare example and (to be fair) this problem goes back a long way.  Similar horror stories were told in the solicitors’ ethics course I completed (roughly three decades ago).

POOR SUPERVISION OR A COMPLETE ETHICAL BREAKDOWN?

The comments in the Gazette on this story are telling.

  • “Where was his supervision?”
  • “How exactly did this young vagabond get as far as being a trainee in the first place?!”

These represent the two viewpoints: (i) a trainee should be supervised properly or (ii) that behaviour is totally unacceptable.  (These views are not diametrically opposed, both can be correct.

  • “No doubt he had a case load of 300 files with minimal supervision and training. The extent of the supervision was most likely reminders from the case management system.
    Still no excuse for his conduct though.”

WHEN SOMEONE JUST GOES OFF THE RAILS

I have seen this several times in my own practice when one totally innocent partner or litigator gets the arduous job of picking up the pieces.  There are a number of points:-

The difficulty for the person picking up the pieces is that this is usually time and costs that will not be recovered; it is often morale destroying; they often get the blame for something that is not their fault and it is extremely poor PR for the firm involved.

With those points in mind it is worthwhile examining how this can be avoided and what steps can be taken once litigation has started to go wrong.

TEN KEY POINTS: AVOIDANCE OF PROBLEMS AND DEALING WITH A PROBLEM THAT HAS OCCURRED

1. SOMEONE SHOULD KNOW WHAT A “SENSIBLE” CASELOAD IS: OR YOU COULD BURY EVERYBODY

I have written before that a failure to assess what a realistic caseload is remains a fundamental weakness of the litigation process.  This is something recognised by those who work for law firms but…

“It is surprising how this question can often generate hostility (from those who manage firms, not those who actually do the work, I should add). It “depends”; it is “too difficult”; it is “impossible to say”.”
There is a useful discussion in The Optimum Caseload  which has a sensible discussion of caseload and discusses the “bury everybody” approach.
“The “bury everybody” approach.  In most firms, the primary goal is to ensure that there are no idle hands. Because every person drawing pay represents a load on the financial resources of a firm, there is a general terror of hiring more lawyers than are absolutely necessary. To serve this end, firms often operate on the principle that no more attorneys or staff should be hired than are absolutely necessary in light of the firm’s caseload. The goal in such firms is to keep each attorney as busy as possible, in order to reduce the likelihood that the firm will be forced to fire people if there is a drop in workload. This may seem like a good idea to limit the likelihood of being forced to implement a reduction in force due to a dip in business. In firms that follow this approach, the underlying value judgment is that the firm at its existing size is more stable with a “packed” caseload, which creates the sense that business is booming and all is well. The senior partners in such firms tend to think the stress level of this caseload forces attorneys to continually operate in a “maximum billing mode” all the time, yet remaining “efficient.”
The primary flaw. In reality, what such firms are actually doing is implementing a policy whereby the short-term risk of reduced job security for any given person has a higher priority than the quality of the firm’s work, its long-term growth, or any one person’s sanity or professional development. This short-term, fear-motivated thinking tends to stifle, rather than promote, growth and advancement for individuals as well as the firm as a whole. The “bury everybody” approach not only penalizes the individual attorneys in the firm by reducing the quality of the work environment; the attorneys who work the hardest are punished by ever increasing workloads. Despite the assumptions mentioned above, the added stress experienced by all produces no additional income, because attorneys with lighter caseloads are already billing all they can and still not getting everything done in their cases, so this approach jeopardizes clients’ interests for no real gain. In the long run, the likelihood of losing business with this approach is actually increased, because the overall quantity and quality of the firm’s output and marketing activity is radically decreased. For these reasons, the “bury everybody” approach is usually counter-productive, especially in an hourly billing context.”

It is always worth looking at  “The Caseload Benefit Graph” and the guidance that goes with it.

2. IF YOU MAKE A MISTAKE THE COVER UP IS OFTEN MORE HARMFUL THAN A MISTAKE

An avalanche of problems often starts with one mistake. This is overlooked or covered on and it becomes a regular occurrence. Recognise that people make mistakes. Most mistakes can be put right. However often, indeed all too often, a failure to deal with the matter immediately (or even worse an attempt to cover it up) has far worse consequences than the original mistake ever would.  If you make a mistake:

  • Recognise it.
  • Deal with it.
  • Tell someone.

It is never that easy, of course, but not hiding the mistake is always the best start.

3. PILOTS LEARN ABOUT CRASH LANDING: LAWYERS DON’T

As a passenger I am comforted by the fact that pilots have regular training on what to if anything goes wrong during the flight. I don’t expect things to go wrong, I  certainly don’t want anything to go wrong. However there are good reasons for pilots to be trained in this way. Not least they are learning from mistakes made in the past.

However there is very little by way of equivalent for lawyers.  It could be said that the issues are “obvious” and do not need telling.  However this does not take into account the sheer feeling of panic that can overtake a practitioner when a mistake has been made.  There, are, of course, sometimes issues of ego as well.  However the purpose of training and instruction is to ensure that people know what to do.

4. IT OFTEN HELPS IF SOMEONE ELSE DEALS WITH A FILE THAT IS STARTING TO GO WRONG

When matters go wrong on a file it, normally, becomes the bane of the lawyer’s life.  It is often passed onto someone else. Hence the courts often see witness statements that say:

“I now have conduct of this matter because I am the newest/youngest/ most gullible person in the department and everyone else realised that this file was a bag of rats.”

Of course the statement does not say that expressly. However most of our District Judges and Masters  can recognise the “hospital pass” file. It is not difficult to read the writing between the lines and Judges are, often, not impressed. Any  personal sympathy for the litigator involved is overtaken by anger (if not disgust) with the firm that put the litigator in that situation.

Further it is doubtful whether the new fee earner is comfortable with the file.   I have been involved in cases, particularly for large firms, where the assistant solicitor given charge of the matter regarding  being handed the “problem” file as somewhat of a blot on their career. They have explained to me that they felt that even being associated with the file would taint their reputation and their prospects. Further because much of the time spent on the file could not be billed they were unwilling to spend enormous amounts of time on it.

5. SOMEONE SENSIBLE AND EXPERIENCED NEEDS TO TAKE THIS ON

If a decision is made that problem files should be moved on (and my Advice is that, subject to the views of the client, they should be at least for the purpose of solving the immediately problem) they need to be moved to someone senior and with considerable, patience, wisdom and experience.  There is an abundance of talent in our litigators and, in most firms, someone will fit the bill.  Dealing with problem files should be the pinnacle of the litigator’s career. With these files it is often your firm’s money and reputation at stake it is sheer folly to hand the file to someone who is uncomfortable with them, no matter how diligent they are.

6. GUIDANCE FROM OVER THE POND – WORKLOAD TRIAGE

If you have temporary overload a useful starting point is Michael Hyatt’s  “When you feel overwhelmed by your workload” My favourite point from here is “practice workload triage”

“Some patients will survive without medical care. Some won’t survive even if they have medical care. Triage means ignoring these two groups and focusing on those that will only survive with medical care.
You must know which things you can safely ignore and which things demand your intervention.”

7. WORKING TOO MANY HOURS IS JUST COUNTER-PRODUCTIVE

Little analysis goes into the issue of whether additional hours spent in work are counterproductive.  See the earlier post on this topic “It’s Nuts”

“The Business Roundtable study found that after just eight 60-hour weeks, the fall-off in productivity is so marked that the average team would have actually gotten just as much done and been better off if they’d just stuck to a 40-hour week all along. And at 70- or 80-hour weeks, the fall-off happens even faster: at 80 hours, the break-even point is reached in just three weeks.”

8. LEARN FROM THE EXPERIENCE

An important point here is anyone involved in putting things right should make sure that the whole firm benefits from the experience of any file that has gone wrong. Steps must be taken to:-

  • Ensure that the cause of the problem is identified and steps taken to deal with this.
  • If the problem is one of a system breaking down then the system must be remedied.
  • If the problem is one of overwork then the litigator’s workload must be examined.
  • If the problem is one of an individual litigator’s ability. Then consider re-training or re-allocation.
  • Do your very best to ensure that the specific problem never arises again.

9.  ENCOURAGING CANDOUR WILL SAVE MUCH TIME AND MONEY IN THE LONG RUN

What is very important is that staff are confident that they will receive help if they rely on the contingency plan. If your staff are not confident of this then mistakes will get hidden or (usually bungled) attempts will be made to remedy the situation. In these circumstances the plan is useless. The earlier you deal with problems the better.

10. LAST, BUT BY NO MEANS LEAST, A TRIP TO COUNSEL SOMETIMES HELPS

This is part of the “trouble shared” argument (and obviously advertorial material).  However it is surprising how often problems with have kept solicitors awake for weeks can be dealt with and resolved by a conference.

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