AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 10: “DEFENSIVE LITIGATION”: PROTECT AND SURVIVE
In the 10th post in this series we consider the concept of “defensive litigation”, that is what positive steps litigators can take to avoid problems occurring.
THE LIST: DEFENSIVE LITIGATION
This list is based on a talk I gave in one of Kerry Underwood’s courses in 2014. The group were asked to prepare a checklist in relation to what steps they thought could avoid problems in litigation.
- Appoint a “risk manager” that is someone in the firm who is alive to, and can increase awareness of, issues relating to negligence.
- Have a “case manager” that is someone who is particularly aware of diary entries and gives alters.
- Have a system of peer review (which I was assured did not mean review by members of the House of Lords).
- Have clear written standards and internal policies.
- If there is a key date have a system where this is put in the diary as soon as possible, do not wait for a court order to arrive.
- Have a system of being able to prove postage of all documents and, if possible, recording receipt. Particularly in relation to documents sent to court.
OTHER LISTS THAT MAY HELP: IDEAS FROM “ACROSS THE POND”
“Attorney at Work” has a useful article on 10 Ways to Avoid a Malpractice Claim written by Dan Pinnington.
1. Get it in writing (that is the terms of the retainer should be clearly identified).
2. Get the money up front
3.Manage client expectations
4. Document, document, document.
5.Meet or beat deadlines.
6. Don’t annoy clients.
7. Ask how you are doing.
8. Send interim and reporting letters.
9. Don’t sue for fees.
10. “Listen to your gut”.
You may not agree with all of these. However they give food for thought.
OTHER MATERIAL TO LOOK AT
Attorney at Work has a number of relevant articles.
There is a whole wealth of material on avoiding “malpractice” for personal injury litigators in the United States available here some of the points made are clearly relevant in the context of England and Wales (and beyond).