STAYING SANE AS A LITIGATOR 2: FISH FILES AND HOW TO FILLET THEM

October 21, 2019 · by · in Avoiding negligence claims, Case Management, Civil evidence, Civil Procedure

We have looked at “fish files” several times on this blog, and with good reason. A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier (this is not always a metaphor). These files are always “ripe”. Ripe, that is, for problems to occur and, generally, for matters to get worse. The file gets avoided more and more. Here we look at practical solutions to deal with a problem that virtually every litigator has. A failure to realise this, to face up to it, and to have strategies in place to deal with these issues underlies a surprising number of cases with sanctions or limitation. 

FISH FILES ARE AN INTERNATIONAL PROBLEM

Fish files feature several times in John Grisham’s work.  He even wrote a short story about a lawyer’s issues with fish files.

THE CONSEQUENCE OF NOT DEALING WITH FISH FILES

This is actually a very serious problem. Procrastination can lead to depression which, in turn can lead to other problems.

The crucial thing is to realise that this is a universal problem.   Every lawyer has one of these files (I often ask at lectures and, over the years, only one person has said they did not [his colleagues later cast much doubt on this]).  Further there is plenty of material out there (a lot of it American) which can usefully be adapted.  Here I have some links to useful on-line guides.

HELP IS AT HAND: A LIST PREPARED BY PRACTITIONERS

A few years I did a guest lecture spot in Kerry Underwood’s “Underwood on Jackson” tour in Sheffield.   Several teams worked on this issue.

GUIDANCE FROM THE TEAMS

1. If you are stuck ask for help. Get a second opinion.

2. The firm should carry out regular file reviews.

3. Delegate the work if necessary (but don’t “dump” it on junior colleagues”).

4. If you are avoiding a file, make an appointment with yourself specifically to do that task.

5. Segment the work into pieces.

6. Have an office “swop-shop” where files can be exchanged if necessary.

7. Ensure that there is an open culture in the office where problem files can be discussed.

8. Make an appointment with the client (it was felt that this could encourage action and also give rise to encouragement and inspiration).

9. Go to counsel [I should explain that a number of my colleagues were also taking part, I accept their vested interest].

10. Deal with matters when you are at your best.

11. Ensure that everyone has a manageable case load.

USEFUL LINKS: DEALING WITH PROCRASTINATION

LITIGATION SPECIFIC

Some of the above are general.

IT CAN AFFECT YOUR HEALTH

PRACTICAL ADVICE

Gibson & Perkins Attorneys offer regular malpractice avoidance tips. In “Managing your Fish Files” they recommend a regular swapping of fish files to ensure that problems are shared and dealt with.

HUMOUR: TO SURVIVE WE HAVE TO LAUGH

 

 

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